AS TO THE ADMISSIBILITY OF
Application No. 12278/86
by MARKT INTERN Verlag GmbH,
Günter WEBER and
Hans-Wilhelm BEYEN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 27 May 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil 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 26 May 1986 by
MARKT INTERN VERLAG GmbH, Günter WEBER and Hans-Wilhelm BEYEN against
the Federal Republic of Germany and registered on 16 July 1986 under
file No. 12278/86;
Having regard to the observations submitted by the respondent
Government on 3 September 1990 and the observations in reply submitted
by the applicants on 26 October 1990;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicants, may be
summarised as follows:
The first applicant is a publishing firm whose registered
office is in Düsseldorf in the Federal Republic of Germany. It
publishes weekly news-sheets aimed at specialised commercial sectors.
The second and third applicants, German citizens born in 1940
and 1953, respectively, reside at Düsseldorf. They are the first
applicant's managers and also act as the editor and a journalist,
respectively, of the weekly news-sheets issued by the first applicant.
Before the Commission the applicants are represented by Mr.
Ch. Tomuschat, a professor of law at the University of Bonn.
The present application does not relate to the first
applicant's previous application No. 10572/83, leading to the Markt
Intern Verlag GmbH and Klaus Beermann judgment of the European Court
of Human Rights of 20 November 1989 (see Eur. Court H.R., Series A No.
165).
A. Particular circumstances of the case
I.
The present application concerns proceedings instituted by the
S. company against the first applicant based on the German Unfair
Competition Act (Gesetz gegen den unlauteren Wettbewerb, see below
Relevant domestic law). The S. company specialises in home
electronics, in particular video appliances which are based on the
Beta video system developed by the S. company. The proceedings
concerned in particular statements made by the applicants about the
sales, and the position on the German market, of the Beta video
equipment.
In a news-sheet of 31 August 1982, addressed to the
specialised retail trade, the first applicant wrote, inter alia:
[Translation]
"It could well be that the S. company itself no longer knows
in which channels alien to the retail trade its Betamax
appliances are placed and sold off ... As retail traders,
however, you should be well-informed throughout the Federal
Republic about all such S. placings 'sympathetic to the
retail trade'. That's why [the first applicant] is
launching the first comprehensive manufacturer enquiry
exclusively for its subscribers! You should participate and
carefully fill out the questionnaire enclosed in this
edition on the basis of your information and experience.
[The first applicant] will compile on the basis of all
questionnaires received statistics about the S. company ..."
[German]
"Natürlich kann es sein, dass S. selbst nicht mehr weiss, in
welchen fachhandelsfremden Kanälen seine Betamax-Geräte
überall plaziert und verschossen werden ... Sie als
Fachhändler jedoch sollten im gesamten Bundesgebiet über
alle diese 'fachhandelsfreundlichen' S.-Plazierungen bestens
Bescheid wissen. Darum startet [die Beschwerdeführerin]
exclusiv für [ihre] Abonnenten die erste Hersteller-
Vollerhebung! Machen Sie mit, und füllen Sie den dieser
Ausgabe beiliegenden Fragebogen nach Ihren Informationen und
Erfahrungen sorgfältig aus. [Die Beschwerdeführerin] stellt
aus allen eingehenden Umfragebögen die S.-Vertriebs-
Statistik zusammen ..."
The news-sheet contained a questionnaire which was headed:
"Provide yourselves and your colleagues with a survey of the presence
and disintegration of the S. company in sales markets other than those
of the retail trade" ("Verschaffen Sie sich und Ihren Kollegen einen
Überblick über Präsenz und Verriss von S. in fachhandelsfremden
Kanälen").
After having published first results of this enquiry on 14
October 1982, the applicants communicated to the S. company, by telex
of 7 December 1982, a number of critical remarks made by specialised
retailers in the questionnaires returned by them. Twelve retail firms
were named as protesting against the sales practice of the S. company.
There followed a summary of the main points of their criticism. The
telex continued:
[Translation]
"One retailer from this group: 'The product image is already
ruined. The serious retail trade avoids the negative trend
of the trade mark which now affects the whole Beta system.
The decline of the Beta group appears irreversible. It is
already too late'."
[German]
"Ein Händler aus dieser Gruppe: 'Das Produkt-Image ist
bereits ruiniert. Der gute Fachhandel meidet den negativen
Sog der Marke, der schon auf den gesamten Beta-Bereich
ausstrahlt. Die Talfahrt der Beta-Gruppe scheint nicht
umkehrbar. Es ist bereits zu spät'."
The end of the telex was phrased in the following terms:
[Translation]
"In order to be able to inform the specialised retail trade
we ask you to tell us whether - apart from occasional
'assurances of faithfulness' - the S. company intends at
last to do something for the retail trade in the near future."
[German]
"Um den Fachhandel informieren zu können, bitten wir Sie
uns mitzuteilen, ob S. - abgesehen von gelegentlichen
'Treuebekenntnissen' - in absehbarer Zukunft einmal etwas
für den Fachhandel tun will."
The S. company did not reply to this telex. However, on 10
December 1982 it obtained a preliminary injunction (einstweilige
Verfügung) from the Cologne Regional Court (Landgericht) prohibiting
the applicants from publishing the above-mentioned verbatim statement
of a retailer.
II.
Subsequently the S. company brought an action against the
applicants seeking the final prohibition of the publication of this
statement under the Unfair Competition Act or the Civil Code
(Bürgerliches Gesetzbuch). It claimed that the statement was
incorrect in that the share of the Beta equipment in the market had
increased from 14% at the end of 1981 to 17% in the third trimester of
1982. It considered the publication of this statement as part of a
systematic campaign launched by the applicants against the S. company,
aiming at discrediting the Beta system and promoting the
competitiveness of other firms in the German market. It described
this as an inadmissible call for boycotting the trade mark S. The firm
S. further sought an order obliging the applicants to inform it of the
scope of dissemination of the incriminated statement and a declaratory
judgment establishing the applicants' liability to compensate the S.
company for all damage resulting from the publication of this
statement.
The applicants contested the justification of the action. They
denied the existence of a danger of a publication of the statement, in
particular as it represented their own view. They observed that the
statement was a subjective value judgment by a third person on the
market chances of the Beta system which had a basis in the facts as
reflected in several press publications. Its communication to the S.
company had been made in the exercise of the applicants' freedom of
press which included the right to seek information and was thus
covered by Article 5 para. 1 of the Basic Law (Grundgesetz; see below
Relevant domestic law). The relevant telex was an invitation for
comments by the producer concerned. It showed that the applicants did
not intend an uncontrolled publication of the results of their
enquiry. They claimed to be entitled to publish the statement as they
were not competitors of the S. company.
On 11 March 1983 the Regional Court rejected the action. It
considered that the Unfair Competition Act was inapplicable as the
communication of the statement to the plaintiff had not been made
for purposes of competition. It also rejected the claim under the
Civil Code, holding that the incriminating statement did not interfere
with the S. company's business. It was not a boycott call, but a
value judgment and the S. company had not shown that it was in essence
incorrect.
III.
The S. company filed an appeal (Berufung) against this
judgment which the Cologne Court of Appeal (Oberlandesgericht) on 28
September 1984 partly upheld. It quashed the Regional Court's
judgment and issued an order prohibiting the applicants from
publishing solely the first two sentences of the retailer's statement
(i.e. "The product image is already ruined. The serious retail trade
avoids the negative trend of the trade mark which now affects the
whole Beta system"). The S. company's further claims for information
and compensation were however rejected.
The Court of Appeal considered that there still existed a
danger that the applicants would publish the statement as if it
reflected their own views. Such a publication infringed Section 1 of
the Unfair Competition Act as it was made for purposes of competition.
Other motives did not completely supersede the applicants' intention
to promote the competitiveness of other producers to the detriment of
the plaintiff firm. Retailers were incited to avoid the negative
trend of the trade mark S. which allegedly affected the whole Beta group
and thus to turn to the video systems of other producers competing
with the plaintiff firm. While the publication of the statement could
not be qualified as a boycott call, it nevertheless directly
interfered with competition. It was part of a series of other
critical statements of the first applicant concerning the S. company
and went beyond the functions of the press.
The Court of Appeal observed inter alia that the third and
fourth sentences concerning in particular the decline of the Beta
group were of a factual nature and accessible to proof. The Court
regarded it as true that the Beta system's share in the market had in
fact decreased since 1980 both in Germany and in the United States.
The publication of this part of the statement, including the value
judgment that the trend was irreversible and that it was already too
late, could not be prohibited under Section 1 of the Unfair
Competition Act even if it was made for purposes of competition. It
was not contrary to honest practices (gute Sitten) as it was the
function of the press to inform the public of developments of general
importance and contribute to the formation of public opinion.
With regard to the first two sentences, however, the Court
stated:
[Translation]
"The defendants have not submitted any indications which
could justify such a value judgment. The same applies for
the second sentence of the statement. The submissions of
the defendants do not provide the slightest basis for the
assumption that the S. trademark entails or generally has a
'negative trend'. It can also not be said that the negative
trend of the S. trademark now affects the whole Beta system.
The first two sentences of the statement are therefore to be
qualified as disparaging criticism. Even if due account is
taken of the impact of Article 5 para. 1 of the Basic Law on
the interpretation of Section 1 of the Unfair Competition
Act, their dissemination must be qualified as a breach
against honest practices within the meaning of this
provision ..."
[German]
"Die Beklagten haben keinerlei Anhaltspunkte vorgetragen,
die ein solches Werturteil zu rechtfertigen vermöchten. Das
gleiche gilt für den zweiten Satz der Äusserung. Für die
Annahme, die Marke S. bewirke oder habe allgemein einen
'negativen Sog', bietet der Vortrag der Beklagten nicht die
geringste Grundlage. Dann kann es auch nicht sein, dass der
negative Sog der Marke S. auf den gesamten Beta-Bereich
ausstrahlt. Die ersten beiden Sätze der Äusserung sind
mithin als reine Schmähkritik zu werten. Ihre Verbreitung
ist auch bei gebührender Berücksichtigung der Einwirkung von
Artikel 5 Abs. 1 Grundgesetz auf die Auslegung von Abs. 1
UWG als ein Verstoss gegen die guten Sitten im Sinn dieser
Vorschrift zu qualifizieren ..."
IV.
On 11 July 1985 the Federal Court of Justice
(Bundesgerichtshof) refused the applicants leave to appeal.
V.
The applicants' subsequent constitutional complaint
(Verfassungsbeschwerde) was dismissed by the Federal Constitutional
Court on 29 January 1986 as not offering sufficient prospects of
success.
In its decision the Court considered that the applicants'
right to seek information, being included in the freedom of the press,
was not affected by the Court of Appeal's decision. Insofar as that
decision had assumed a risk that the applicants would publish the
incriminated statement for purposes of competition, this was an
evaluation of the evidence and an application of the ordinary law which
could not be controlled by the Court. The Court further considered
that in prohibiting the publication of the statement the applicants'
right to freedom of the press had not been disregarded. This freedom
had been referred to in the reasons of the Court of Appeal's decision.
In the present case the freedom of expression and of the press did not
override the legal interests protected by Section 1 of the Unfair
Competition Act, notwithstanding the use of means which were generally
protected by Article 5 para. 1 of the Basic Law. Thus, the prohibited
statement did not serve to influence public opinion on a matter of
public importance, but only to promote, in the context of commercial
competition, certain economic interests to the detriment of others.
B. Relevant domestic law
Article 5 paras. 1 and 2 of the Basic Law of the Federal
Republic of Germany states:
[Translation]
"(1) Everyone shall have the right freely to express and
disseminate his opinion by speech, writing and pictures and
freely to inform himself from generally accessible sources.
Freedom of the press and freedom of reporting by means of
broadcasts and films are guaranteed. There shall be no
censorship.
(2) These rights are limited by the provisions of the
general laws, the legal provisions for the protection of
youth, and by the right to inviolability of personal
honour ..."
[German]
"(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und
Bild frei zu äussern und zu verbreiten und sich aus
allgemein zugänglichen Quellen ungehindert zu unterrichten.
Die Pressefreiheit und die Freiheit der Berichterstattung
durch Rundfunk und Film werden gewährleistet. Eine Zensur
findet nicht statt.
(2) Diese Rechte finden ihre Schranken in den Vorschriften der
allgemeinen Gesetze, den gesetzlichen Bestimmungen zum
Schutze der Jugend und in dem Recht der persönlichen Ehre ..."
Section 1 of the Unfair Competition Act of 1909 provides:
[Translation]
"Whoever, in the course of business activities, commits, for
the purpose of competition, acts contrary to honest
practices, may have proceedings taken against him for an
injunction and damages."
[German]
"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."
COMPLAINTS
1. The applicants allege a violation of their right to freedom of
expression guaranteed by Article 10 of the Convention.
They submit that they have done no more than communicate to
the S. company the results of an enquiry among specialised retailers
and ask that company for its comments as required by journalistic
fairness. They had not published the statements concerned and no
decision had been taken concerning the eventual report to be
published. In effect they were forbidden to make preparatory
investigations for a future article which might have interfered with
the interests of the company. This was a serious restriction of
investigative journalism, which was essential for the effective
exercise of freedom of the press.
2. Under Article 14 of the Convention taken together with Article
10 the applicants complain of discrimination in that they did not
benefit from the freedom of the press on account of the political
nature of their publications.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 May 1986 and registered
on 16 July 1986.
Examination of the case was adjourned pending the outcome of
the first applicant's previous Application No. 10572/83, Markt Intern
Verlag GmbH and Klaus Beermann v. the Federal Republic of Germany.
On 20 November 1989 the Court gave its judgment in this case (Eur.
Court H.R., Series A No. 165).
On 7 May 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were received by letter dated 3
September 1990; the applicant's observations were dated 26 October
1990.
THE LAW
1. The applicants complain of the decisions of the German courts
which prohibited them henceforth from publishing the contested
statements. The applicants rely on Article 10 (Art. 10) of the
Convention which states, insofar as it is relevant:
"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 and regardless of
frontiers ...
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 respondent Government submit that there has been no
interference with the applicants' rights under Article 10 (Art. 10) of
the Convention. The Government note the applicants' submissions
according to which they contest that they would ever have published
the contested statements as their own. The Government further
consider that the statements concerned, viewed in their entire
context, came close to a call for a boycott of the S. company.
The Commission notes that the German courts prohibited the
applicants from publishing certain statements in the future. The
statements conveyed information of a commercial nature. Thus the
applicants are henceforth unable to "impart information". The
Commission finds that this prohibition constituted an interference by
a public authority with the exercise of the applicants' rights under
Article 10 para. 1 (Art. 10-1) of the Convention. Its next task is
therefore to examine whether such interference was justified under
Article 10 para. 2 (Art. 10-2).
The first question under Article 10 para. 2 (Art. 10-2) of the
Convention is whether the interference was "prescribed by law" within
the meaning of this provision.
The applicants submit that Section 1 of the Unfair Competition
Act, being the legal basis for the prohibition, is not sufficiently
precise, in particular as regards its scope of application to press
publications.
The Government contend with reference to the judgment of the
Court in the Markt Intern case (Eur. Court H.R., p. 18 et seq.) that
Section 1 of the Unfair Competition Act complies with the requirements
of Article 10 para. 2 (Art. 10-2) of the Convention.
The Commission recalls the judgment in the Markt Intern case
in which the Court found that Section 1 of the Unfair Competition Act
satisfied the requirements of Article 10 para. 2 (Art. 10-2) of the
Convention as a legal basis for the interference in that case with the
first applicant's rights to impart information. The Court found in
particular that such laws were inevitably framed in a general manner
and their interpretation and application had necessarily to be left to
subsequent practice (Eur. Court H.R., ibid., p.18 et seq., para. 30).
It is true that the previous Markt Intern case concerned the
prohibition to publish statements which had previously already been
published. However, the Commission finds that the Court's
considerations are equally valid in the present case, concerning a
prohibition to publish statements which had until then never been
published.
The restrictions imposed on the applicants were "prescribed by
law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.
As regards the question whether the interference served a
legitimate aim within the meaning of Article 10 para. 2 (Art. 10-2), the
applicants submit that neither the protection of public order nor of
the rights and reputation of others were relevant, the aim of the
Unfair Competition Act being primarily the protection of the concept
of fair competition in general. In the present case it had been the
aim of the communication of the statement to the S. company to give
the latter the possibility to protect its reputation by replying to
the allegations made against it.
The Government reply that the interference served the aim of
protecting the reputation and rights of others within the meaning of
Article 10 para. 2 (Art. 10-2) of the Convention.
The Commission recalls that in both the above-mentioned Markt
Intern case and in the Barthold case the Court found that Section 1 of
the Unfair Competition Act aimed at "the protection of the reputation
(and) rights of others" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention (see Eur. Court H.R., ibid. p. 19,
para. 31; Barthold judgment of 25 March 1985, Series A No. 90, p. 51,
para. 23). The Commission sees no need to decide differently in the
present case.
Finally, the Commission must examine whether the interference
was "necessary in a democratic society" within the meaning of Article
10 para. 2 (Art. 10-2) of the Convention.
The applicants contest that this condition had been met. The
statements at issue were made by a retailer, and it was
disproportionate to prohibit their publication as if they represented
the applicant's own views. In fact, the contents and form of a
possible publication had not been decided upon. The S. company was
merely asked for comments. The statements were not in themselves
objectionable. They were critical but based on reality; the
applicants had not invented them. The correctness of the statements
has meanwhile been confirmed by subsequent developments in that the
Beta system has disappeared from the market.
The applicants submit that the prohibition of the statements
amounted to advance censorship on investigative journalism before any
publication had been made. Such a prohibition implied that public
critical discussion of the commercial success of a company would be
generally inadmissible.
The Government submit that the prohibited statements contained
allegations of fact. The Cologne Court of Appeal expressly did not
prohibit the publication of statements concerning value judgments.
Moreover, while the statements at issue did indeed stem from a third
person, namely a retailer, it could reasonably be assumed that the
applicants would publish them as their own in the future. The
preventive prohibition of the statements was necessary in order to
effectively protect the rights of the S. company.
The Commission recalls that the term "necessary in a
democratic society" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention implies that the interference must
correspond to a "pressing social need" and be proportionate to the
legitimate aim pursued. In determining whether an interference is
"necessary in a democratic society" the Convention organs must also
take into account that a margin of appreciation is left to the
Contracting States (see Eur. Court H.R., Barthold judgment, ibid., p.
24 et seq., para. 55; Markt Intern Verlag GmbH and Klaus Beermann
judgment, ibid., p. 19 et seq., para. 33).
The Commission further recalls its case-law according to which
a prohibition to publish true statements will generally require a
strict test of necessity (see Markt Intern Verlag GmbH and Klaus
Beermann v. the Federal Republic of Germany, Comm. Report 18.12.87,
Eur. Court H.R., Series A No. 165, p. 39, para. 234).
However, the Commission observes that in the present case the
national courts concerned, in particular the Cologne Court of Appeal,
considered that the applicants had not provided a sufficient factual
basis which supported the statements at issue.
Moreover, the Cologne Court of Appeal, which noted that the
applicants had previously published critical remarks about the S.
company, could reasonably assume that they would eventually also
publish the contested statements. In the Commission's opinion, it
would have been ineffective if, as a more lenient measure, the German
courts had first waited until the statements were published, and only
then prohibited their renewed publication.
Given the narrow scope of the prohibition issued by the German
courts, the Commission furthermore considers that the present case
does not raise an issue of preventive censorship as the applicants
were not obliged to submit statements which they wished to publish in
advance to the authorities for approval. Preventive censorship must
in particular be distinguished from the present case which concerns
the specific issue of a dispute before a court between private
parties.
In fact, there was no general prohibition at all for the
applicants to publish statements about the S. company. Rather, the
courts carefully distinguished between statements which could and
those which could not be published, and the prohibition was restricted
to two sentences. Thus, there is no basis for the assumption that the
applicants have been banned from carrying out research on the S.
company.
On the whole the Commission considers that the German courts,
in particular the Cologne Court of Appeal, carefully weighed the
competing interests at stake. If, as a result, the Court of Appeal
considered that the statements concerned lacked a sufficient factual
basis and were of a disparaging nature, it cannot be said that this
assessment went beyond the margin of appreciation left to national
authorities.
The Commission therefore finds that the interference
corresponded to a "pressing social need" and that it was not
disproportionate to the aim pursued. The interference could resonably
be considered "necessary in a democratic society" within the meaning
of Article 10 para. 2 (Art. 10-2) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. Insofar as the applicant further complains under Article 14
(Art. 14) of the Convention, taken together with Article 10 (Art. 10),
of discrimination in that they do not benefit from the freedom of the
press on account of the political nature of the publication, the
Commission finds that no issue arises under these provisions. It
follows that the remainder of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy