AS TO THE ADMISSIBILITY OF
Application No. 17200/90
by ÖSTERREICHISCHE SCHUTZGEMEINSCHAFT FÜR
NICHTRAUCHER and Robert ROCKENBAUER
against Austria
The European Commission of Human Rights sitting in private on
2 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H. DANELIUS
Mrs.G.H. THUNE
SirBasil HALL
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 31 August 1990 by
the ÖSTERREICHISCHE SCHUTZGEMEINSCHAFT FÜR NICHTRAUCHER and Robert
ROCKENBAUER against Austria and registered on 25 September 1990 under
file No. 17200/90;
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
applicants, may be summarised as follows.
The first applicant is an Austrian private association in
Innsbruck promoting the interests of non-smokers. The association
inter alia edits magazines, brochures, pamphlets, posters and stickers.
The second applicant, an Austrian national, is resident in Innsbruck.
He is the chairman of the first applicant. Before the Commission, both
applicants are represented by Mr. W.L. Weh, a lawyer practising in
Bregenz.
In February 1988 an international tobacco company instituted
proceedings against the applicants before the Innsbruck Regional Court
(Landesgericht) requesting that the defendants be ordered to refrain
from using a particular slogan, that compensation be paid and that the
judgment be published. The plaintiff also requested an interim
injunction (einstweilige Verfügung) in respect of these claims. In
these proceedings, the applicants were represented by counsel.
The first applicant, in the course of its anti-smoking campaign,
had sold pamphlets, posters and stickers showing the caricature of a
skeleton which, riding a camel, held a cigarette in front of the camel.
Underneath this picture, the following slogan was written: "ONLY A
CAMEL WALKS MILES FOR A CIGARETTE" ("NUR EIN KAMEL GEHT MEILENWEIT FÜR
EINE ZIGARETTE"). In German language, "Kamel" is a pejorative term for
a person acting in a foolish or stupid manner.
On 15 February 1988 the Innsbruck Regional Court, without a
hearing, issued an interim injunction against the applicants ordering
them to refrain from using the words "KAMEL" or "CAMEL" or the picture
of a camel in connection with cigarettes and/or smoking, in particular
in relation to an anti-smoking campaign, and in the way of the picture
as described above (the caricature was reproduced in the decision). The
Court found in particular that the plaintiff was the owner of Austrian
trade marks concerning the word "Camel" and the picture of a camel
together with the word "CAMEL", and successfully used the slogans "I
walk miles for CAMEL filter" or "... for a CAMEL" ("Ich gehe meilenweit
für CAMEL-Filter" oder "... für eine CAMEL"). By using the
above-mentioned incriminated slogan and picture on pamphlets and
stickers, the applicants had violated S. 1 of the Unfair Competition
Act (Gesetz gegen den unlauteren Wettbewerb).
On 13 April 1988 the Innsbruck Court of Appeal (Oberlandes-
gericht), after a hearing in camera and without the parties, granted
the applicants' appeal (Rekurs) and dismissed the request for a interim
injunction. The Court of Appeal considered that the plaintiff could
not claim an injunction under the Unfair Competition Act, nor could his
claims be based on provisions of the Civil Code (Allgemeines
Bürgerliches Gesetzbuch). The applicants' statement, insofar as it
contained information about the risks of smoking, was not incorrect,
and their interests in informing the public about these risks
outweighed the plaintiff's interest in its business reputation.
On 13 September 1988 the Austrian Supreme Court (Oberster
Gerichtshof), upon the plaintiff's appeal on points of law (Revisions-
rekurs), quashed the Court of Appeal's decision of 13 April 1988 and
restored the Innsbruck Regional Court's decision granting the interim
injunction.
The Supreme Court found that S. 1330 para. 1 of the Civil Code
protected against insult and derision not based upon a statement of
facts. The stickers, posters and pamphlets in question, with their
verbatim and figurative reference to a camel, contained a clear
allusion to the plaintiff's CAMEL trade-marks for cigarettes in
Austria. The first applicant's publicity against smoking which
distorted the plaintiff's advertising slogan in a satirical and
ironical manner could be understood as disparagement of the plaintiff's
products. This interference with the plaintiff's reputation was
unlawful. It was true that the tobacco industry had to tolerate a
public debate concerning the risks of smoking even if information about
health risks was presented in an ironical or satirical manner. However,
the freedom of expression had its limits where, without special reason
such as misleading advertising for tobacco with health symbols, a
particular brand was disparaged as a substitute for a whole category
of products. The plaintiff's CAMEL trade-marks only hinted at the
exotic origin of its tobaccos.
On 17 April 1989, in the main proceedings, the Innsbruck Regional
Court, having held a hearing on 10 April 1989, dismissed the
plaintiff's action. The Regional Court, referring to the Supreme
Court's decision in the interlocutory proceedings, found that there
were no claims under the Unfair Competition Act. As regards the claim
under the Civil Code, the Regional Court considered that the
applicants' interference with the plaintiff's reputation and business
goodwill was not unlawful. Although the plaintiff's product was
disparaged as a substitute for a whole category of products, this
particular reference was justified in view of the plaintiff's
misleading advertising using health symbols such as clear water,
unspoilt landscapes as well as sporty and healthy people in these
surroundings.
On 13 September 1989 the Innsbruck Court of Appeal, upon the
plaintiff's appeal (Berufung), partly amended the Regional Court's
judgment to the effect that the applicants were ordered to refrain from
using the word "Camel" or the picture of a camel in connection with
cigarettes and/or smoking, in particular in relation to anti-smoking
publicity, and in the way they had used them on the incriminated
stickers, posters and pamphlets. The remainder of the claims was
dismissed.
The Innsbruck Court of Appeal noted that the relevant factual and
legal issues had already been examined in the interlocutory
proceedings. It referred to the reasoning of the Supreme Court in its
decision of 13 September 1988, according to which, at least in the
interlocutory proceedings, the plaintiff's claim for an injunction was
well founded under the Civil Code. The Court of Appeal considered
that, although not formally bound by this decision taken in the interim
injunction proceedings, the relevant facts and legal issues were
identical to such a degree that the certainty and security of law
(Rechtssicherheit und Entscheidungsharmonie) did not permit it to
deviate from the Supreme Court's legal reasoning according to which
polemic criticism and anti-smoking publicity could only be directed
against a particular brand if it concerned a misleading advertisement
(for instance where there was a connection between the publicity for
cigarettes and typical health symbols). The applicants' publicity did
not fall into this category.
On 9 January 1990 the Supreme Court, with five judges sitting,
four of whom had participated in the interlocutory proceedings,
dismissed both parties' appeals on points of law (Revision). The
Supreme Court confirmed the Court of Appeal's judgment subject to the
modification that the applicants were prohibited from using the words
"KAMEL" or "CAMEL" in their anti-smoking publicity.
In its reasoning, the Supreme Court noted that it was not
formally bound by its previous decision in the interim injunction
proceedings. However, there was no reason to deviate from its legal
approach with regard to the limits of criticism concerning the health
risks of smoking, which it had explained in detail in the course of the
interlocutory proceedings. The Supreme Court considered in particular
that a considerable part of the general public would understand the
applicants' publicity as a clear allusion to the plaintiff's cigarettes
as being especially strong and unhealthy. Furthermore, the incriminated
publicity had no relation to any health symbols in the plaintiff's
advertisements. The CAMEL trade-marks, i.e. the pyramids, the palms
and the silhouette of a mosque, only hinted at the exotic origin of the
tobaccos used. The first applicant had therefore not been entitled to
select the plaintiff's trade-mark in order to criticise tobacco
products in general. The decision was served on 1 March 1990.
COMPLAINTS
1.The applicants complain under Article 10 of the Convention that
the Supreme Court's decision of 9 January 1990 violates their right to
freedom of expression. They consider that the prohibition was not
necessary in a democratic society for the protection of the rights of
others.
2.The applicants complain under Article 6 of the Convention that
the court decisions in the interim injunction proceedings were not
taken after a public hearing in the presence of the parties, and after
the taking of evidence. Furthermore they submit that the main
proceedings were unfair on the ground that the Innsbruck Court of
Appeal considered that for reasons of uniformity of law it was bound
by the Supreme Court's decision in the interlocutory proceedings.
Moreover, four of the five judges deciding on their appeals on points
of law in the main proceedings had already granted the interim
injunction and come to a final decision in that context.
THE LAW
1.The applicants complain under Article 10 (Art. 10) of the
Convention that the prohibition imposed upon them by the Austrian
courts, as confirmed by the Supreme Court's decision of 9 January 1990,
violated their right to freedom of expression.
Article 10 (Art. 10) of the Convention reads, insofar 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 decision of the Austrian courts prohibiting the applicants
from using the words "CAMEL" or "KAMEL" as well as a particular slogan
and picture in their publicity against smoking constitutes an
interference with their right to freedom of expression under Article
10 para. 1 (Art. 10-1) of the Convention. Such an interference
violates the Convention if it is not justified under Article 10 para.
2 (Art. 10-2). The Commission must therefore examine whether it was
prescribed by law, had a legitimate aim under Article 10 para. 2
(Art. 10-2) and was necessary in a democratic society for that aim.
The prohibition was provided for in S. 1330 para. 1 of the
Austrian Civil Code. The applicants agree that it was prescribed by
law, and that it aimed at the protection of the reputation and the
rights of others.
As regards the necessity of interfering with the applicants'
right to freedom of expression, the Commission recalls that the
adjective "necessary" within the meaning of Article 10 para. 2
(Art. 10-2) of the Convention implies the existence of a "pressing
social need". The Contracting States have a margin of appreciation in
assessing whether such a need exists, but this goes hand in hand with
a European supervision which is more or less extensive depending on the
circumstances (cf. Eur. Court H.R., Barthold judgment of 25 March 1985,
Series A no. 90, pp. 24-25, para. 55; Markt Intern Verlag GmbH and
Klaus Beermann judgment of 20 November 1989, Series A no. 165, pp.
19-20, para. 33).
The applicants, an anti-smoking association and its chairman, had
in the course of their anti-smoking campaign, sold pamphlets, posters
and stickers showing the caricature of a skeleton riding a camel, and
used the slogan "ONLY A CAMEL WALKS MILES FOR A CIGARETTE".
In their respective decisions the Austrian courts weighed the
requirements of the protection of the plaintiff's reputation and rights
against the applicants' rights as well as the public interests in the
dissemination of the slogan and caricature in question.
The Austrian Supreme Court, in its decisions of 13 September 1988
in the course of the interlocutory proceedings and of 9 January 1990
in the main proceedings, referred to the right to freedom of expression
and considered that the tobacco industry had to tolerate a public
debate concerning the risks of smoking even if information about health
risks was presented in an ironical or satirical manner. However,
without special reason such as misleading advertising for tobacco using
health symbols, a particular brand must not be disparaged as a
substitute for a whole category of products. A considerable part of
the general public would understand the applicants' publicity as a
clear allusion to the plaintiff's cigarettes as being specially strong
and unhealthy. As there was no reference to any health symbols in the
plaintiff's advertisements, the first applicant had not been entitled
to select the plaintiff's cigarette brand in order to criticise tobacco
products in general. The Innsbruck Court of Appeal, in its decision of
13 September 1989, had followed the Supreme Court's line of reasoning
as set out in the decision of 13 September 1988.
The Commission finds that the applicants had not merely informed
the public about health risks of smoking in general, but presented
their criticism in the form of a caricature with an ironical slogan
distorting the plaintiff's trade-marks and its advertising slogans.
The Commission considers that the Austrian court decisions, in
particular the Supreme Court's decision of 10 January 1990, did not go
beyond the margin of appreciation left to the national authorities in
assessing the proportionality of an interference with the freedom of
expression in accordance with Article 10 (Art. 10) of the Convention.
Consequently, in these circumstances, the Commission finds no
appearance of a violation of Article 10 (Art. 10).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 10-2) of the
Convention.
2.The applicants complain under Article 6 (Art. 6) of the
Convention that the court decisions in the interim injunction
proceedings were not taken after a public hearing in the presence of
the parties, and after the taking of evidence. Furthermore they submit
that the main proceedings were unfair on the ground that the Innsbruck
Court of Appeal considered that for reasons of uniformity of law it was
bound by the Supreme Court's decision in the interlocutory proceedings.
Moreover, four of the five judges deciding on their appeals on points
of law in the main proceedings had already granted the interim
injunction, and come to a final decision in that context.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides that "in the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law".
a.As regards the applicants' complaints about the interlocutory
proceedings, the Commission finds that in these proceedings, the
applicants' rights and obligations were not determined, but only an
interim decision taken pending the main proceedings. The interim
injunction proceedings therefore fall outside the scope of Article 6
(Art. 6) of the Convention (cf., mutatis mutandis, No. 7990/77, Dec.
11.5.81, D.R. 24 pp. 57, 61). The applicants' complaint is accordingly
incompatible ratione materiae with the provisions of the Convention and
must be rejected under Article 27 para. 2 (Art. 27-2).
b.With regard to the applicant's complaints about the main
proceedings, the Commission considers that there is no indication that
the applicants, represented by counsel, could not properly argue their
case, or that the proceedings were otherwise unfairly conducted.
In particular, in the main proceedings, both the Innsbruck Court
of Appeal and the Supreme Court stated that they did not consider
themselves formally bound by the Supreme Court's legal reasoning in its
decision of 13 September 1988 concerning the interim injunction. It
does not appear arbitrary that the courts, in the main proceedings, did
not see any reason to deviate from the legal approach previously taken
by the Supreme Court.
Furthermore, the mere fact that four of the Supreme Court judges
deciding upon the merits of the action, had already been involved in
the interim injunction proceedings, is not in itself sufficient to give
rise to legitimate doubts as to their impartiality (cf. mutatis
mutandis, Eur. Court H.R., Gillow judgment of 24 November 1986, Series
A no. 109, p. 28, para. 73). The applicants, who did not challenge
these judges for bias in the course of the appeal proceedings, failed
to give sufficient reasons to doubt the impartiality of the judges
concerned.
It follows that the applicants' complaints under Article 6
(Art. 6) of the Convention concerning the main proceedings are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy