Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 25181/94

H. U. H.

against

Switzerland

REPORT OF THE COMMISSION

(adopted on 9 April 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-33) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-29). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 30-33). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 34-60) . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 35). . . . . . . . . . . . . . . . . . . . .7

C. As regards Article 10 of the Convention

(paras. 36-53). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 54). . . . . . . . . . . . . . . . . . . . 10

D. As regards Articles 6 para. 1 and 8 of the Convention

(paras. 55-57). . . . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 58). . . . . . . . . . . . . . . . . . . . 11

E. Recapitulation

(paras. 59-60). . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF MM. S. TRECHSEL, G. JÖRUNDSSON,

A. GÖZÜBÜYÜK, D. SVÁBY AND E. BIELIUNAS . . . . . . . . . . 12

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, a Swiss citizen, is an engineer residing in

Wattenwil in Switzerland. He is represented before the Commission by

Mr R. Schaller, a lawyer practising in Geneva.

3. The application is directed against Switzerland. The respondent

Government are represented by Mr Ph. Boillat, Head of the European Law

and International Affairs Section of the Federal Office of Justice,

Agent.

4. The case concerns the applicant's complaints that he was

prohibited from publishing his research results about the hazardous

effects on health of microwave ovens. He also complains about the

unfairness of the proceedings. The applicant invokes Articles 6, 8

and 10 of the Convention.

B. The proceedings

5. The application was introduced on 13 September 1994 and

registered on 19 September 1994.

6. On 16 January 1996 the Commission (Second Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 2 April 1996.

The applicant replied on 19 June 1996 after an extension of the time-

limit fixed for this purpose.

8. On 27 November 1996 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 10 December 1996 and they were invited to submit such

further information or observations on the merits as they wished.

However, no further submissions were made.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. G.H. THUNE, President

MM. S. TRECHSEL

J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

12. The text of this Report was adopted on 9 April 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant undertakes environmental biological research in his

own laboratory. One research project concerned food prepared in

microwave ovens.

17. In spring 1991, he published, together with B., a professor at

the Swiss Federal Institute of Technology in Lausanne, a research

report with the title "Comparative investigations on the effects on

human beings of food prepared by conventional means and in microwave

ovens". The report contained the following results:

"Food which has been heated up, or thawed out, or cooked, in a

microwave oven (milk and vegetables) caused in the blood of the

test persons some significant changes such as: the reduction of

all haemoglobin values, and an increase of haematocrits,

leucocytes and of cholesteric values, in particular of the DL and

LL portions. As regards lymphocytes, a more pronounced decrease

in the short term was apparent, particularly in the case of

vegetables prepared in the microwave oven, than in all other

variants.

On the basis of the luminosity of luminous bacteria, a

significant relation was apparent between the absorption by the

radiated food of technical microwave energy and the luminosity

which was subsequently measured in the blood serum of the test

persons. It can be concluded therefrom that this technical

energy was inductively transmitted via the food to the human

being; a process which is determined according to physical laws

and which is confirmed by statements in literature.

The measured effects of microwaves via food on human beings

demonstrate, as opposed to unradiated food, changes in the blood

which indicate the commencement of a pathological process, as

also found when cancerous growth is initiated."

18. In 1992 a number of journals and magazines referred to the

applicant's report either fully or in part, for instance "Raum & Zeit"

and "Vita Sana Magazin".

19. The "Journal Franz Weber" had on the cover page the text

"Microwaves: Danger scientifically proven" and displayed a reaper

(Sensemann) carrying a microwave oven. The article itself had the

title "Microwave ovens: a danger for health. The evidence is

uncontestable" and stated, inter alia:

"The research results of B. and (the applicant) are so worrying

that one should prohibit the use of microwaves as soon as

possible and stop the production and trade of such apparatuses.

At the same time all microwave ovens currently in use should be

destroyed. Public health is at stake! ... The ... indubitably

proven, devastating characteristics of microwaves adversely

affect ... also directly via the radiated food the human being."

20. The "Journal Franz Weber" mentioned the applicant's name both as

the co-author of the article and the editor of the journal.

21. In a previous article in the "Journal Franz Weber", published in

1989, the applicant had written:

"Today, microwaves, together with cigarettes, are probably one

of the worst reasons for cancer which the human mind has ever

thought up ... Have you got a microwave oven within your walls?

Then bring it as soon as possible back to where you bought it so

it can be disposed of! For microwave ovens are more malicious

than the gas stoves of Dachau. If you prepare your meals in such

an oven, your slow death will begin ..."

22. Professor B. later distanced himself in a newspaper article from

the applicant's publications. In Professor B.'s submissions, the

research of 1989 only permitted the conclusion that further research

should be undertaken on the matter. He found that the applicant's

conclusions had such a weak basis that a normal scientist would never

have dared formulate them.

23. Subsequently, the Association of Electrical Appliances for

Household and Trade in Switzerland (Fachverband Elektroapparate für

Haushalt und Gewerbe in der Schweiz) told the applicant that his

statements concerning the influence on the health of human beings of

microwave ovens amounted to a completely unjustified denunciation

(Verteufelung) of the apparatus lacking serious scientific conclusions.

The applicant was requested to issue a declaration according to which

in future he would no longer make any unfair statements about microwave

ovens. The applicant did not react thereto.

24. On 7 August 1992 the Association filed an action against the

applicant before the Commercial Court (Handelsgericht) of the Canton

of Bern. The Association submitted an expert opinion of Professor T.

of the Federal Technical High School at Zurich who had specialised in

food research. In his opinion, Professor T. concluded that the

applicant's research was useless and the conclusions untenable.

25. On 19 March 1993 the Commercial Court upheld the action and

prohibited the applicant, under threat of punishment, from stating that

food which had been prepared in microwave ovens was hazardous to

health. The applicant was also prohibited from using in publications

or in public conferences about microwave ovens the picture of a reaper

or any other symbol of death. In its decision, the Commercial Court

stated, inter alia:

"... clearly, it may not be said that it is scientifically proven

that food which has been prepared in a microwave oven is

hazardous to health and causes cancer. Presently, there are

insufficient indications in science for such an influence.

Neither the defendant's own research - which does not comply with

the generally valid scientific requirements - nor other

investigations of serious scientists substantiate his statements.

The contrary is rather the case, as the observations of the World

Health Organisation and the Federal Health Office demonstrate ...

The applicant's statement according to which food which had been

prepared in microwave ovens is hazardous to health and leads to

changes in the blood of consumers, indicating a situation which

could amount to the beginning of cancerous growth, is manifestly

untrue and false and therefore incorrect within the meaning of

S. 3 (a) of the Federal Unfair Competition Act. The action must

in this respect, therefore, be upheld. The defendant is of

course free to base his theses on new scientific research ...

The defendant has issued statements ... and employed the

picture of the reaper, for which he bears responsibility since

he was aware of the style of the journal and accepted and

condoned the exaggeration. Regardless of what is the truth, he

has exceeded the acceptable standards and has therefore acted in

an unnecessarily damaging manner within the meaning of S. 3 (a)

of the Federal Unfair Competition Act. By mixing a sensational

report with scientific statements he has also misled the

addressed circle of clients. In particular, the picture of the

reaper and also such statements as 'microwave ovens are more

treacherous than the gas stoves of Dachau', 'your slow death

begins', or 'so certainly will you die of cancer' are

inadmissibly playing with the fear of death ..."

26. The applicant filed an appeal (Berufung) which the Federal Court

(Bundesgericht) dismissed on 25 February 1994, the decision being

served on 28 March 1994.

27. In its decision, the Court found that scientific research and

publications did not as such fall within the framework of competition

(wettbewerbsgerichtet) as long as they remained academic. Scientific

statements interfered with competition, however, if, as in the present

case, they were employed negatively to influence the sale of a

particular product.

28. The Court further noted that in the proceedings the applicant had

admitted that he liked the idea of the death symbol of a reaper, and

that Professor B. had formally distanced himself from the research.

The decision continued:

"Positive or negative publicity with scientific data must

therefore, in the public interest and in order to ensure

effective competition, only be admitted if the data correspond

to established scientific conclusions, or at least if the

diverging views are clearly referred to. If there is no full

guarantee that the scientific data are correct, their uncritical

publication is at least misleading and therefore deceptive within

the meaning of Article 3 para. a of the Federal Unfair

Competition Act ... According to the Commercial Court's

conclusions the applicant's views are not at all scientifically

secure; on the contrary, they are, on the whole, rejected. To

state in the context of competition that they are correct is

inadmissible within the meaning of Article 3 para. a of the

Federal Unfair Competition Act ..."

29. The Court concluded that a person relying on the freedom of

scientific research was free to explain his conclusions within academic

circles. However, in the context of competition he could not assume

that his views were correct if they were disputed.

B. Relevant domestic law

30. According to S. 2 of the Federal Unfair Competition Act

(Bundesgesetz gegen den unlauteren Wettbewerb), any conduct,

influencing relations between competitors or between persons offering

and receiving, is unfair and unlawful if it is deceptive or in any

other way breaches the principle of good faith.

31. According to S. 3 para. a of the Federal Act, unfair conduct

consists of diminishing others, their goods, works, achievements, their

prices or their business situation by means of incorrect, misleading

or unnecessarily damaging statements (wer andere, ihre Waren, Werke,

Leistungen, deren Preise oder ihre Geschäftsverhältnisse durch

unrichtige, irreführende oder unnötig verletzende Äusserungen

herabsetzt).

32. S. 9 envisages an action for persons claiming to have been

threatened by means of unfair competition.

33. According to S. 84 of the Federal Judiciary Act

(Organisationsgesetz), complaints about cantonal acts must be raised

before the Federal Court by means of a public law appeal

(staatsrechtliche Beschwerde).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

34. The Commission has declared admissible the applicant's complaints

under Articles 8 and 10 (Art. 8, 10) of the Convention that he was

prohibited from publishing his views about the hazardous effects of

microwave ovens; and under Article 6 para. 1 (Art. 6-1) of the

Convention that he was prohibited from undertaking an act which he did

not intend to carry out.

B. Points at issue

35. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 10 (Art. 10) of the

Convention;

- whether there has been a violation of Article 8 (Art. 8) of the

Convention; and

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) of the Convention.

C. As regards Article 10 (Art. 10) of the Convention

36. The applicant complains of the prohibition to publish the results

of his scientific research. He relies on Article 10 (Art. 10) of the

Convention which states, insofar as 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 ...

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."

37. The applicant contends that the law on which the prohibition is

based is unclear. It gives the impression that it concerns persons

interested in competition. A wide interpretation of this law in fact

prevents a large number of religious, philosophical or political

opinions. The applicant further points out that Article 10 para. 2

(Art. 10-2) of the Convention does not mention "the economic well-being

of the country" contrary to Article 8 para. 2 (Art. 8-2) of the

Convention.

38. The applicant further submits that the Government are avoiding

the real issue, namely whether it can be justified to prohibit the

publication of a thesis only because it is not considered to be

scientifically proven. The authorities intervened in a phase of

scientific research and issued a prohibition although the applicant

undertakes individual research and plays no part in the commerce of

microwave ovens. The publication of 1989 was never the object of the

present proceedings.

39. The applicant claims that it is disproportionate to throttle a

weak critic whereas the producers of microwave ovens constantly

advertise their products. Freedom of opinion is a necessity in a

democratic society in that it can make the authorities and science

discover problems of public health.

40. The Government submit that the interference with the applicant's

rights was justified under Article 10 para. 2 (Art. 10-2) of the

Convention. Thus, the measure was "prescribed by law" as required by

this provision in

that it was based on S. 9 of the Unfair Competition Act. Moreover, the

measure aimed at "the protection of the ... rights of others" and "the

prevention of disorder" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

41. The Government submit that the domestic authorities had not

exceeded the margin of appreciation left to them under Article 10

para. 2 (Art. 10-2). The measure only affected the applicant in his

commercial competition relations. He remains free to undertake

scientific studies and to publish his results, in particular in

scientific and academic circles. It is true that scientific progress

at times originates in far-fetched ideas, and the Federal Court never

determined whether or not microwave ovens damaged health.

42. In the Government's opinion, the question before the authorities

was whether or not these dangers were scientifically proven. They

concluded that there was a controversy in this respect and that one

could not therefore refer to objectively and scientifically established

dangers. Indeed, commercial publicity is inadmissible where it is

incorrectly presented as being scientifically proven. Insofar as the

applicant also employed symbols of death in his publications, this was

bad taste, unnecessarily hurting and misleading. In a publication in

1989 the applicant compared microwave ovens with Nazi extermination

camps.

43. The Commission notes that the applicant was prohibited from

publishing the results of his scientific research outside a scientific

context. In the Commission's opinion, this prohibition constituted an

interference by a public authority with the exercise of the applicant's

rights under Article 10 para. 1 (Art. 10-1) of the Convention. The

Commission has, therefore, to examine whether such interference was

justified under Article 10 para. 2 (Art. 10-2) of the Convention.

44. The Commission notes that the prohibition was based on SS. 2

and 3 (a) of the Federal Unfair Competition Act which concerns inter

alia unfair conduct towards the business of others. S. 9 envisages an

action for persons claiming to have been threatened by unfair

competition. These provisions were sufficiently precise for the

applicant to regulate his conduct (see Eur. Court HR, Markt Intern

Verlag GmbH and Klaus Beermann v. Germany judgment of 20 November 1989,

Series A no. 165, p. 18 et seq., para. 30). The interference was,

therefore, "prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention.

45. Moreover, the interference, serving to protect the public from

inadmissible publicity, aimed at "the protection of the reputation

(and) rights of others". It therefore pursued a legitimate aim in

accordance with Article 10 para. 2 (Art. 10-2) of the Convention.

46. 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.

47. According to the Convention organs' case-law, the interference

at issue must correspond to a "pressing social need" and be

proportionate to the legitimate aim pursued. In this respect the

Commission recalls that freedom of expression constitutes one of the

essential foundations of a democratic society; subject to para. 2, it

is applicable not only to "information" or "ideas" that are favourably

received or regarded as inoffensive or as a matter of indifference, but

also to those that offend, shock or disturb (see Eur. Court HR, Lingens

v. Austria judgment of 8 July 1986, Series A no. 103-B, p. 26,

para. 41).

48. On the other hand, 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. Such a margin of appreciation appears essential

in commercial matters, in particular in an area as complex and

fluctuating as that of unfair competition (see Eur. Court HR,

Jacubowski v. Germany judgment of 23 September 1994, Series A no. 291,

p. 14, para. 26; Markt Intern Verlag GmbH and Klaus Beermann v. Germany

judgment, loc. cit., p. 19 et seq., para. 33).

49. In the present case the Commission considers at the outset that

the applicant was expressing his views on issues of public health in

connection with the use of a modern technical appliance. Clearly, the

applicant was not acting as a competitor. There is also no indication

in the case-file that he was undertaking negative commercial publicity

by attacking a specific brand, or a particular producer, of the

appliance.

50. The domestic courts mainly criticised the applicant for

publishing scientifically untenable results. However, the Commission

notes that the applicant is an engineer by training. While the

applicant's research apparently deviated from the mainstream of

scientific opinion, at least at the outset his research was supported

by Professor B., though the latter later distanced himself from the

applicant as his research had a weak basis.

51. It is true that the publications at issue employed an exaggerated

language, for instance, that "all microwave ovens ... should be

destroyed", and were accompanied by the symbol of a reaper. In the

Commission's opinion, however, the publications thereby made it clear

to the reader that the applicant was aiming at expressing his own

opinion on a matter on which he felt strongly, rather than engaging on

a balanced and pondered scientific discussion.

52. While it is true that Article 10 (Art. 10) of the Convention

leaves a margin of appreciation to Contracting States in such

circumstances, the Commission considers that freedom of expression is

of special importance for free debate on matters of public importance

for the community, such as public health (see mutatis mutandis

Eur. Court HR, Barthold v. Germany judgment of 25 March 1985, Series A

no. 90, p. 26, para. 58).

53. As a result, the measure complained of was not proportionate to

the legitimate aim pursued and, accordingly, was not "necessary in a

democratic society ... for the protection of the reputation (and)

rights of others" within the meaning of Article 10 para. 2 (Art. 10-2)

of the Convention.

CONCLUSION

54. The Commission concludes, by 10 votes to 5, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention.

D. As regards Articles 6 para. 1 and 8 (Art. 6-1, 8) of the

Convention

55. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the authorities prohibited him from undertaking an act

which he did not intend to carry out. Under Article 8 (Art. 8) of the

Convention the applicant complains that the prohibition to publish his

views called in question his position as a scientist.

56. Article 6 para. 1 (Art. 6-1) of the Convention which states,

insofar as relevant:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

... hearing ..."

Article 8 (Art. 8) of the Convention states, insofar as relevant:

"1. Everyone has the right to respect for his private ... life

...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

57. However, the Commission has just found that prohibition to

publish the views at issue breached the applicant's rights under

Article 10 (Art. 10) of the Convention. The Commission finds that no

separate issue arises under Articles 6 para. 1 and 8 (Art. 6-1, 8) of

the Convention.

CONCLUSION

58. The Commission concludes, unanimously, that no separate issue

arises under Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention.

E. Recapitulation

59. The Commission concludes, by 10 votes to 5, that in the present

case there has been a violation of Article 10 (Art. 10) of the

Convention (see above, para. 54).

60. The Commission concludes, unanimously, that no separate issue

arises under Articles 6 para. 1 and 8 (Art. 6-1, 8) of the Convention

(see above, para. 58).

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

(Or. English)

DISSENTING OPINION OF MM S. TRECHSEL, G. JÖRUNDSSON,

A. GÖZÜBÜYÜK, D. SVÁBY AND E. BIELIUNAS

We agree with the majority that the interference with the

applicant's rights under Article 10 para. 1 of the Convention was

"prescribed by law" and aimed at "the protection of the reputation

(and) rights of others" within the meaning of Article 10 para. 2 of the

Convention.

However, we disagree as to the finding that the measure was not

"necessary in a democratic society".

We consider, first, that the applicant was only prevented from

publishing his views on the dangers associated with eating food thawed

or heated in a microwave oven in publications aimed at the public at

large. There was also no obstacle for him to continue his research,

and he was free to publish his views and the result of his research in

publications addressed to scientifically educated readers.

Second, the applicant had presented certain theories as being the

result of serious scientific research while, in fact, they were highly

contested. In this respect the national courts relied on the fact that

Professor B. had disclaimed his support of the earlier research in

which he had participated and Professor T. had declared that the

applicant's views could not seriously be upheld.

Third, we note that the national courts attached considerable

weight to the manner in which the applicant had presented his views.

His language had been highly emotionalised, in particular the

association between microwave ovens and a Nazi extermination camp was

considered as being exceedingly polemic and creating anxieties which

were in no way scientifically justified as the applicant alleged. The

use of a reaper as a symbol was considered equally unacceptable.

On the whole, the Swiss courts carefully weighed the competing

interests at stake. We also consider that the exercise of the rights

guaranteed under Article 10 "carries with it duties and

responsibilities". In this respect, it does not appear unreasonable

to impose some restraint on publications alarming consumers in

connection with the use of very popular appliances. Taking these

considerations into account, we do not find that the national

authorities exceeded their margin of appreciation when they imposed the

restrictions at issue upon the applicant, particularly as that margin

of appreciation is relatively wide in matters of unfair competition

(see Jacubowski v. Germany judgment, loc. cit.).

We therefore consider that the interference with the applicant's

right to freedom of expression was justified under Article 10 para. 2

of the Convention in that it could reasonably be considered "necessary

in a democratic society ... for the protection of the reputation (and)

rights of others" within the meaning of this provision.

We conclude that in the present case there has been no violation

of Article 10 of the Convention.

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HERTEL v. SWITZERLAND

HERTEL v. SWITZERLAND