AS TO THE ADMISSIBILITY OF
Application No. 15088/89
by Manfred JACUBOWSKI
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
3 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 April 1989 by
Manfred JACUBOWSKI against the Federal Republic of Germany and
registered on 7 June 1989 under file No. 15088/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1933, is a German national and resident
in Bonn. He is a journalist by profession. Before the Commission he
is represented by Mr. W. Meilicke, a lawyer practising in Bonn.
The applicant was co-founder, partner and manager of a private
company operating a news agency, which went bankrupt in March 1983.
Subsequently, a successor news agency D., operated by a limited
company, was founded. On 3 May 1983 the applicant was appointed, for
a period of five years, sole managing director and employed as chief
editor of this news agency.
On 17 July 1984 the applicant was dismissed without notice. He
instituted court proceedings before the Bonn Regional Court
(Landgericht) challenging his dismissal. Later the news agency D.
repeated the applicant's dismissal on several occasions invoking other
reasons.
On 16 August 1984 his employer D., in its news network, published
a press release concerning its reorganisation of personnel, which also
commented upon the applicant's qualifications and his performance as
a journalist and managing director. The press release, so far as
relevant, reads as follows:
" bonn, 16 August 84 branchendiensten wiedergegebene darstellungen ueber vorgaenge bei der personellen neugliederung der unternehmens- und redaktionsfuehrung als unzutreffend zurueckgewiesen. im einzelnen nahm 1. nachdem die ... gmbh am 31. maerz den konkurs anmeldete, startete the jacubowski - am 20. april 1983 mit einem grundkapital von einer million dm. jacubowskis unveraendertes geschaeftsgebaren und unangemessenes verhalten im umgang mit kunden einerseits sowie das fehlen einer zielstrebigen und verlaesslichen redaktionsfuehrung andererseits verhinderten, dass die chance des neubeginns genutzt wurde, und hatten vielmehr verluste von kunden zur folge. ueber diese entwicklung wurde der damalige aufsichtsrat in gravierenden punkten bis in dieses fruehjahr hinein von jacubowski falsch informiert. insbesondere wurden verbindlichkeiten aus der gmbh-zeit der ag angelastet und damit das rechtzeitige eingreifen des damaligen leiters des finanz- und rechnungswesens, des heutigen vorstands schaden verhindert werden, so dass wirtschaftlich auf gesunden fuessen steht. wegen kaufmaennischen versagens und besonders wegen uebertragung von verbindlichkeiten der gmbh auf die ag wurde jacubowski zum 17. juli - dem tag der hauptversammlung - fristlos gekuendigt. zum neuen alleinvorstand wurde 2. der neugewaehlte aufsichtsrat bot jacubowski einen neuen vertrag als chefredakteur an. gleichzeitig beschlossen aufsichtsrat und vorstand die erweiterung der chefredaktion. jacubowski lehnte die taetigkeit in diesem gremium nach eingeraeumter bedenkzeit mit der begruendung ab, er bestehe auf einhaltung seines frueheren vertrages. ..." " Bonn, 16 August 84 statements made in several bulletins aimed at specialised sectors about events in the course of the reorganisation of personnel in the management of the firm and the editor's office. In particular 1. After the ... private company declared itself bankrupt on 31 March 1983, the management of Manfred Jacubowski - with a capital stock of one million DM. The unchanged business policy of Jacubowski and his inappropriate attitude towards clients on the one hand, and the lack of an efficient and reliable editorial management on the other hand, prevented the chance of a new start from being used, and moreover resulted in the loss of clients. Until this spring Jacubowski, in important matters, wrongly informed the managing board. In particular, the limited company was charged with debts, originating from the period of the private company, and thus was again manoeuvred into financial difficulties. Only through the timely intervention of the then Head of Finance and Accounting, the present Managing Director damage could be prevented with the result that again a good financial foundation. Having regard to his failure as a businessman and in particular the transfer of debts from the private company to the limited company, Jacubowski was dismissed without notice as from 17 July - the date of the general meeting. 2. The newly appointed supervisory board offered Jacubowski a new contract as chief editor. At the same time the supervisory board and the managing director decided to enlarge the editorial management. Jacubowski refused to work in such a group after time for reflection on the ground that he insisted on his previous contract. ..." On 17 September 1984 the Bonn Regional Court dismissed the applicant's request for a preliminary injunction (einstweilige Ver- fügung) concerning his claim of a right to reply (Gegendarstellung) to the above press release. On 25 September 1984 the applicant addressed a circular letter to a number of leading newspaper and radio journalists known to him, including clients of the news agency D. The letter was phrased in the following terms: "Die beigefügte - wenn auch zwangsläufig nicht vollständige - Auswahl von Berichten über die Sache Jacubowski ./. sicher einiges aufhellen, das noch im dunkeln liegt, auch wenn Ihnen die eine oder andere Schilderung schon bekannt sein sollte. Dies gilt trotz manchmal unzutreffender 'facts', die das Gesamtbild allerdings kaum verändern. Die noch laufenden Gerichtsverfahren, die von der gegenwärtigen betroffene Mitarbeiter und ich einleiteten, werden aber auch in Details für endgültige Klarheit sorgen. Ich würde mich freuen, wenn sich schon bald die Gelegenheit für ein persönliches Gespräch bieten würde, um nicht nur die Vergangenheit, sondern auch die künftige Entwicklung am deutschen 'Nachrichtenmarkt' zu erörtern. Um einen Termin dafür werde ich mich rechtzeitig bemühen." "The enclosed selection of articles concerning the case of Jacubowski v. D. which is necessarily not complete will certainly clarify some matters which are still in the dark, even if you should already know one or the other reported fact. This is so despite partly incorrect facts which however hardly affect the picture as a whole. The pending court proceedings which have been instituted by staff members affected by the current development of D. and by myself will finally throw light on all details. I would be pleased to have the opportunity for a personal conversation in which I could discuss not only the past, but also future developments on the German media market. I shall in due time ask for an appointment for this purpose." The letter was accompanied by various articles concerning the financial and staff situation of D. which had been subsequently published by six newspapers with a wide circulation. While containing critical remarks on the applicant they also expressed severe criticism of his former employer. One article of 21/22 September 1984 stated that D.'s financial situation had become worse than at the time of the bankruptcy in April 1983, and also mentioned that five clients intended to terminate their contractual relations with D. Another article reported that a number of clients of news agency D. had stopped their subscription to its services because of deficiencies in the quality of the journalistic product and failure to provide for particular forms of distribution such as online text or teletext. This was illustrated by several examples. The article also mentioned that the news agency risked to lose one of its major clients, which subsidised a news service in English which had become rather poor. On 11 October 1984 the Cologne Court of Appeal (Oberlandes- gericht), upon the applicant's appeal, quashed the Bonn Regional Court's decision of 17 September 1984, and recognised the applicant's right to reply to his employer's press release in the terms chosen by him. The applicant's reply was printed one month later. On 28 October 1984 the news agency D., referring to the applicant's circular letter, again pronounced his dismissal. In February 1985 D. transferred any claims against the applicant to the limited company E. holding 25% of the shares of D., and authorised it to bring such claims in its own name. Thereupon, E. extended injunction proceedings before the Düsseldorf Regional Court, which it had brought against the author of the first of the above- mentioned articles, a journalist, to the applicant. E. submitted that the applicant had infringed unfair competition law, inter alia, by addressing the above circular letter with enclosures to clients of the news agency. In a judgment of 24 October 1984, the journalist concerned was prohibited from stating that D.'s financial situation had become worse than at the time of the bankruptcy in 1983. In March 1985 the applicant himself started a news agency. On 29 January 1986 the Düsseldorf Regional Court dismissed the action of the limited company E. The Regional Court found in particular that E. was not entitled to bring, in its own name, injunction proceedings against the applicant. On 11 December 1986 the Düsseldorf Court of Appeal, upon the appeal of the company E., which was joined by the news agency D., partly amended the Regional Court's decision. The Court of Appeal ordered the applicant to refrain from adverse comments on the activities of the news agency D. by transmitting to third persons a selection of articles on his litigation with D. with the remark that despite partly incorrect facts, the picture as a whole would hardly be affected, and that pending court proceedings which had been introduced by staff members affected by the current development of D. and by the applicant himself would finally throw light on all details. It also ordered him to disclose to the limited company E. the recipients of his circular letter of 25 September 1984. It finally held that he was liable to compensate E. for all damage caused to D. by the distribution of the circular letter. The remainder of the appeal was dismissed. The decision was based on S. 1 of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb) which reads: "Wer im geschäftlichen Verkehr zu Zwecken des Wettbewerbes Handlungen vornimmt, die gegen die guten Sitten verstoßen, kann auf Unterlassung und Schadensersatz in Anspruch genommen werden." "Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices may be enjoined from further engaging in those acts and held liable for damages." The Court of Appeal found that the applicant, in his circular letter enclosing especially two critical articles, had adversely commented upon D.'s activities, particularly the quality of its reporting, the unreasonable costs of its services and the lack of modern techniques. Such statements were likely to depreciate D. in the eyes of its present or future clients. While these critical remarks were not contained in the circular letter itself but in the press articles annexed to it, the applicant had endorsed the factual statements and value judgments by confirming them in his circular letter as being essentially correct. Furthermore the Court of Appeal considered that the applicant had acted for purposes of competition in business transactions. Already before sending his circular letter, the applicant had planned to found his own news agency. The distribution of his circular letter with enclosures to clients of D. as well as D.'s or his potential clients was capable of promoting the competitiveness of his own envisaged news agency. Taking the identical clientele into account, a competitive relationship could be assumed, although the applicant's news agency had not yet existed at the relevant time. The applicant had also acted with competitive intent. There was a factual assumption (tatsächliche Vermutung) of competitive intent where activities were objectively capable of promoting one's own competitivenes to the detriment of somebody else's. The applicant's competitive intent was further confirmed by the circumstances of the case, in particular his plans to set up his own news agency and the timing of their realisation, and the suggestion, in the last paragraph of the circular letter, to have conversations about, inter alia, the future development of the German news market. The question whether the detrimental statements concerning D. had been correct justifying the negative judgments based thereupon could be left open as even the distribution of true information constituted unfair competition if a competitor was depreciated without sufficient reason. As regards the remainder of the action, the Court of Appeal found that the plaintiffs had failed to prove that the applicant had disclosed professional secrets. On 26 November 1987 the Federal Court of Justice (Bundes- gerichtshof) refused to admit the applicant's appeal on points of law (Revision) on the grounds that the case was of no fundamental importance, and that the appeal offered no prospect of success. On 4 October 1988 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint on the ground that it was ill-founded. The Constitutional Court found that the civil court decisions complained of, which concerned an injunction under S. 1 of the Unfair Competition Act, did not disclose any appearance of a violation of the applicant's rights to the free development of his personality, to freedom of expression and to the free choice of trade, occupation or profession, as guaranteed by the Basic Law (Grundgesetz). The Constitutional Court found that the impugned court decisions had only prohibited the applicant from using a particular form of expression and particular formulations. The Court of Appeal's decision did not extend to the expression of particular ideas irrespective of the means of expression or the form of their presentation. The applicant had not generally been prevented from uttering criticism of the news agency D. Having regard to this evident limitation of the injunction, there was no danger of chilling effects or other negative consequences of considerable importance on the general exercise of the applicant's freedom of expression. The constitutional review had to be based on the Court of Appeal's finding that the applicant's circular letter had been intended to serve his economic interests and that he had acted for purposes of competition. Constitutional law could only be violated so far as the applicant's rights under the Basic Law were relevant for the interpretation and application of S. 1 of the Unfair Competition Act, in particular the notion of acting contrary to honest practices. The Constitutional Court considered that there was no indication that the impugned decisions violated the applicant's right to freedom of expression. The Constitutional Court accepted that the applicant, in distributing his circular letter with annexes, had expressed an opinion covered by Article 5 para. 1 of the Basic Law, notwithstanding that it also came within the scope of unfair competition law. In the present case, the interference with the applicant's freedom of expression was based upon S. 1 of the Unfair Competition Act, a law of general application limiting the freedom of expression. It had to be interpreted with due regard to the importance of freedom of expression; thus its limiting effect on that freedom had to be restricted accordingly. Relevant criteria for the qualification of a detrimental statement by a competitor were its motive, and its aim and purpose. If it was not motivated by a person's own economic interests, but by his concern for political, economic, social or cultural interests of public importance, the freedom of expression prevailed over private and in particular economic interests. However, the protection of such private interests was to be given more weight, if the statement in question was directly affecting private interests in pursuance of self-interest, and not contributing to the exchange of opinions on matters of considerable public interest. In any case, the prejudice to the person concerned had to remain within the limits of necessity and appropriateness. In this context the means used to achieve the intended aim were important. In the present case, the applicant had distributed a great number of critical and mostly negative press articles to D.'s actual or potential clients. The Court of Appeal had applied these principles in line with the constitutional requirements. It had explained in detail that the applicant's expression of opinion served purposes of competition, and that it was not justified in the circumstances of the present case. According to the Constitutional Court, the applicant had not aimed at influencing public opinion, but sent his circular letter only to a limited number of persons working in this business sector and known to him. His suggestion of a personal conversation disclosed his predominant intention to ensure existing and future business contacts with the addressees of his circular letter, and thus to promote his own commercial interests and his competitiveness in the news market. There was therefore no appropriate balance between the aim pursued by the applicant and the interference with the interests of the news agency D. and its share-holding company. The press release of the news agency D., which contained depreciating remarks about the applicant, could not justify the applicant's behaviour either. An attack in a public debate could in principle justify a sharp and even depreciating reaction within the sphere of public debate. However, the applicant's reaction had taken place outside the sphere of public discussion and had not aimed at influencing public opinion. Meanwhile, in the proceedings concerning the applicant's dismissal, the Bonn Regional Court had declared that the applicant's contract had not been terminated. On 11 October 1988 the Cologne Court of Appeal, upon D.'s appeal, partly amended the Regional Court's decision to the effect that the contract of employment had been terminated upon the applicant's dismissal of 28 October 1984 following the distribution of the circular letter. Compensation proceedings instituted by company E. against the applicant on the basis of the Court of Appeal's judgment of 11 December 1986 remained unsuccessful. COMPLAINTS The applicant complains under Article 10 of the Convention that the German court proceedings concerning the injunction issued against him in respect of his circular letter of 25 September 1984 violated his right to freedom of expression. The applicant submits in particular that the restriction imposed on him cannot be justified under Article 10 para. 2 as it was not "necessary in a democratic society for the protection of the rights of others". He states that the contents of the press articles distributed by him were true, and he had not presented them in a misleading manner. In reaction to the preceding attack by the news agency D., he had aimed at influencing public opinion in writing to leading journalists who had been informed of the discussion on the policies of this news agency. As he did not dispose of the same publishing means as this news agency, which had refused to print a reply, it was for him to choose the means by which he could best defend his interests. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 11 April 1989 and registered on 7 June 1989. On 7 May 1990 the Commission decided to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits. The Government's observations were submitted on 15 October 1990. On 12 December 1990 the applicant submitted his observations in reply. On 5 September 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application. The hearing took place on 3 December 1991. The Government represented by their Agent, Mr. J. Meyer-Ladewig, and Mr. A. von Mühlendahl as well as Mrs. L. Babby as Advisers. The applicant was represented by Mr. W. Meilicke, a lawyer practising in Bonn, who was assisted by Mr. Th. Heidel and Mr. H. Meilicke. The applicant was also present. THE LAW The applicant complains under Article 10 (Art. 10) of the Convention that the injunction issued against him in respect of his circular letter violated his right to freedom of expression. Article 10 (Art. 10) of the Convention reads, so far as relevant, as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ... 2. 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." The Government, referring to the case-law of the European Court of Human Rights (Markt Intern Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A no. 165), maintain that the interference with the applicant's freedom of expression was justified under Article 10 para. 2 (Art. 10-2) of the Convention. The parties' submissions concern the question whether the interference was "necessary in a democratic society" for the protection of the reputation and the rights of others, namely the competitive interests of the news agency. The applicant denies this proposition, whilst the Government maintain it. The Commission finds that the applicant's complaint under Article 10 (Art. 10) of the Convention about the injunction issued against him in respect of his circular letter raises questions of fact and of law, which are of such complexity that their determination requires an examination on the merits. The application is therefore not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Commission unanimously DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Commission President of the Commission (H. C. KRÜGER) (C. A. NØRGAARD)
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