EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 15088/89

                          Manfred JACUBOWSKI

                                against

                                GERMANY

                       REPORT OF THE COMMISSION

                      (adopted on 7 January 1993)

                           TABLE OF CONTENTS

                                                                 PAGE

I.    INTRODUCTION

      (paras. 1 - 16) . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

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

      B.   The proceedings

           (paras. 5 - 11). . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 12 - 16) . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 17 - 48). . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 17 - 47) . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law and practice

           (para. 48) . . . . . . . . . . . . . . . . . . . . . . . 9

III.  OPINION OF THE COMMISSION

      (paras. 49 - 71). . . . . . . . . . . . . . . . . . . . . . .10

      A.   Complaint declared admissible

           (para. 49) . . . . . . . . . . . . . . . . . . . . . . .10

      B.   Point at issue

           (para. 50) . . . . . . . . . . . . . . . . . . . . . . .10

      C.   Article 10 of the Convention

           (paras. 51 - 70) . . . . . . . . . . . . . . . . . . . .10

           Conclusion

           (para. 71) . . . . . . . . . . . . . . . . . . . . . . .14

APPENDIX I:      HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15

APPENDIX II:     DECISION ON THE ADMISSIBILITY. . . . . . . . . . .16

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, born in 1933, is a German national and resident

in Bonn.  He is a journalist by profession.  Before the Commission he

was represented by Mr. Meilicke, a lawyer practising in Bonn.

3.    The application is directed against the Federal Republic of

Germany.  The Government were represented by their Agents,

Mr. Meyer-Ladewig, Ministerialdirigent, and Mr. Stöcker,

Ministerialrat, of the Federal Ministry of Justice.

4.    The application relates to the applicant's complaint under

Article 10 of the Convention about a court order under the Unfair

Competition Act prohibiting him from sending to third parties articles

making adverse comments about his former employer, a news agency, with

whom he was in dispute over his dismissal.

B.    The proceedings

5.    The application was introduced on 11 April 1989 and registered

on 7 June 1989.

6.    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.

7.    The Government's observations were submitted on 15 October 1990.

On 12 December 1990 the applicant submitted his observations in reply.

8.    On 5 September 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

9.    The hearing took place on 3 December 1991.  The applicant

attended in person and was assisted by his lawyer Mr. Meilicke,

Representative, and Mr. Heidel, Adviser.  The respondent Government

were represented by Mr. Meyer-Ladewig, Agent, and by Mr. von Mühlendahl

and Mrs. Babby, both of the Federal Ministry of Justice, as Advisers.

10.   Following the hearing the Commission declared the application

admissible.

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

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

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

settlement of the case.  Active consultations with the parties took

place between 17 January and 24 March 1992.  The Commission now finds

that there is no basis on which such a settlement can be effected.

C.    The present Report

12.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, 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

           MM.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

13.   The text of this Report was adopted on 7 January 1993 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

14.   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.

15.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16.   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

17.   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.

18.   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.

19.   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:

      " stellt behauptungen richtig

      bonn, 16 August 84 - die verwaltung der hat in

      branchendiensten wiedergegebene darstellungen ueber vorgaenge bei

      der personellen neugliederung der unternehmens- und

      redaktionsfuehrung als unzutreffend zurueckgewiesen. im einzelnen

      nahm zu diesen versionen wie folgt stellung:

      1. nachdem die ... gmbh am 31. maerz den konkurs anmeldete,

      startete the ag - weiterhin unter der leitung von manfred

      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

      erneut in finanzielle schwierigkeiten manoevriert. nur durch

      das rechtzeitige eingreifen des damaligen leiters des finanz- und

      rechnungswesens, des heutigen vorstands , konnte groesserer

      schaden verhindert werden, so dass heute wieder

      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 ernannt.

      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.  ..."

      " puts allegations right

      Bonn, 16 August 84 - The administration of rejected

      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

      commented as follows:

      1. After the ... private company declared itself bankrupt on

      31 March 1983, the limited company started - still under 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 , more serious

      damage could be prevented with the result that has today

      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.

      was appointed new managing director.

      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.  ..."

20.   On 29 August and 4 September 1984 the applicant requested the

news agency D. to publish, in its network, his reply (Gegendarstellung)

to the above press release.  The news agency refused.  On

17 September 1984 the Bonn Regional Court dismissed the applicant's

request for an injunction (einstweilige Verfügung) concerning his claim

of a right to reply.

21.   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 ./. kann

      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 -Entwicklung

      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."

22.   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.

23.   On 11 October 1984 the Cologne Court of Appeal (Oberlandes-

gericht), upon the applicant's appeal (Beschwerde), 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.

24.   On 28 October 1984 the news agency D., referring to the

applicant's circular letter, again pronounced his dismissal.

25.   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.

26.   In March 1985 the applicant himself started a news agency.

27.   On 29 January 1986 the Düsseldorf Regional Court dismissed the

action of the limited company E. against the applicant.  The Regional

Court found in particular that E. was not entitled to bring, in its own

name, injunction proceedings against him.

28.   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, by

a prohibitory injunction, 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.

29.   The decision was based on S. 1 of the Unfair Competition Act

(Gesetz gegen den unlauteren Wettbewerb).

30.   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.

31.   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.

32.   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

competitiveness 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.

33.   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.

34.   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.

35.   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.

36.   On 4 October 1988 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it was

ill-founded.

37.   The Constitutional Court found that the civil court decisions

complained of 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).

38.   The Constitutional Court considered 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.

39.   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.

40.   The Constitutional Court found that there was no indication that

the impugned decisions violated the applicant's right to freedom of

expression.

41.   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.

42.   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.  The applicant had distributed a great

number of critical and mostly negative press articles to D.'s actual

or potential clients.

43.   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.

44.   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.

45.   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.

46.   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.

47.   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.

B.    Relevant domestic law

48.   S. 1 of the Unfair Competition Act (Gesetz gegen den unlauteren

Wettbewerb) 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."

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

49.   The Commission has declared admissible the applicant's complaint

that the prohibitory injunction issued against him on 11 December 1986

in respect of his circular letter of 25 September 1984 violated his

right to freedom of expression.

B.    Point at issue

50.   Accordingly, the issue to be determined is whether there has been

a violation of Article 10 (Art. 10) of the Convention.

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

51.   Article 10 (Art. 10) of the Convention provides, so far 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

      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, ... for the protection

      of the reputation or rights of others, ..."

52.   The prohibitory injunction of 11 December 1986, issued by the

Düsseldorf Court of Appeal in respect of adverse comments upon the

activities of the news agency D., such as in the applicant's circular

letter of 25 September 1984, constituted an interference with the

applicant's right to freedom of expression under Article 10 para. 1

(Art. 10-1).  This interference contravenes Article 10 (Art. 10) if it

is not justified under Article 10 para. 2 (Art. 10-2), as being

prescribed by law, pursuing a legitimate aim and being necessary in a

democratic society for the said aim.

53.   The Commission notes that the prohibitory injunction was based

on S. 1 of the Unfair Competition Act.  This provision, having regard

to the German case-law on matters of competition and the extensive

commentary, has been accepted as a legal basis under Article 10 para. 2

(Art. 10-2) (cf. Eur. Court H.R., Barthold judgment of 25 March 1985,

Series A no. 90, p. 22, para. 47; Markt Intern Verlag GmbH and Klaus

Beermann judgment of 20 November 1989, Series A no. 165, pp. 18-19,

para. 30).  The Commission, though no reference has been made to case-

law on the particular issues of the present case, is satisfied that the

case-law on S. 1 of the Unfair Competition Act was such as to enable

persons in the commercial area to regulate their conduct.  The

interference complained of was, therefore, prescribed by German law.

54.   Moreover, this decision had the aim of protecting the reputation

and rights of others, namely the competitive interests of the news

agency D., which is legitimate under Article 10 para. 2 (Art. 10-2).

55.   It remains to be determined whether the interference complained

of was necessary in a democratic society in order to accomplish this

aim.

56.   The applicant submits that the restriction imposed upon him was

not necessary in a democratic society for the protection of the rights

of others.  In particular, he had reacted to the preceding attack upon

his professional reputation by the news agency D. in writing to leading

journalists who had been informed of the discussion on the policies of

this news agency.  At the time in question, the news agency had refused

his claim to reply, and court proceedings in this respect had been

unsuccessful at first instance.  As he did not dispose of the same

publishing means as this news agency, it was for him to choose the

means by which he could best defend his interests.  In a democratic

society within the meaning of the Convention he could not solely be

referred to court remedies, i.e. the request for an injunction to

ensure his right to reply, and otherwise be obliged to remain silent

in the situation of his case.

57.   The Government, referring to the Markt Intern Verlag GmbH and

Klaus Beermann judgment, maintain that the interference with the

applicant's freedom of expression was necessary in a democratic society

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

58.   They submit in particular that statements with economic aims were

not at the core of freedom of expression, but rather at its periphery.

The examination of the present case had to start from the Court of

Appeal's finding that the applicant acted, at least partly, for

competitive purposes.  In his circular letter, he did not only bring

the annexed press articles again to the attention of the addressees in

prominent positions in press and broadcasting, but also shared their

contents.  Thus the considerable danger arose that the addressees would

at least doubt the quality of D.'s services, and would terminate

contracts with D.  The applicant could not invoke a right of defence

as he could await the outcome of the court proceedings concerning his

claim to reply to D.'s press release.

59.   The Commission recalls that the adjective "necessary" within the

meaning of Article 10 para. 2 (Art. 10-2) implies the existence of a

"pressing social need".  The Contracting States enjoy a margin of

appreciation in determining whether such a need exists, but this goes

hand in hand with a European supervision which is more or less

extensive depending upon the circumstances.  The European Court of

Human Rights has held that such a margin of appreciation is essential

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

fluctuating as that of unfair competition.  Otherwise, it would have

to undertake a re-examination of the facts and all circumstances of the

case.  The review under the Convention must be confined to the question

whether the measures taken on the national level are, in the light of

the case as a whole, justifiable in principle and proportionate  (cf.

Eur. Court H.R., Markt Intern Verlag GmbH and Klaus Beermann judgment,

loc. cit., pp. 19-20, para. 33; Sunday Times (No. 2) judgment of

26 November 1991, Series A no. 217, pp. 28-29, para. 50).

60.   In the present case, the Düsseldorf Court of Appeal, in its

injunction of 11 December 1986, 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 partly incorrect facts hardly affected the

picture as a whole, 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.

61.   The Commission recalls that since 1983 the applicant had been

sole managing director and chief editor of the news agency D.

Previously, he had been co-founder, partner and manager of a

predecessor news agency, which went bankrupt.  Following controversies

with his employer D., the applicant was dismissed without notice on a

number of occasions, the first time on 17 July 1984.  Labour court

proceedings brought by the applicant ultimately remained unsuccessful.

62.   On 16 August 1984, in the context of these controversies, the

applicant's 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.  In this press release, D., referring to the

bankruptcy of its predecessor, expressed its opinion that the applicant

had failed as a businessman.  In particular his business policy had not

changed, his attitude towards clients was inappropriate, his editorial

management lacked efficiency and reliability, he had thereby prevented

the chance of a new start from being used and lost clients.  Moreover,

the applicant, in important matters, had wrongly informed the managing

board.

63.   The news agency D. subsequently refused to publish a reply

drafted in respect of the above press release.  On 17 September 1984

the applicant's request for an injunction concerning his claim for a

right to reply was dismissed at first instance.  The Cologne Court of

Appeal allowed the claim on 11 October 1984, and the applicant's reply

was printed one month later.

64.   In the meantime, on 25 September 1984, the applicant had

addressed his circular letter to a number of leading newspaper and

radio journalists.  He had enclosed a selection of articles concerning

the financial and staff situation of D. which had been published by six

newspapers with a wide circulation and contained both critical remarks

on the applicant as well as severe criticism of his former employer.

In the accompanying letter, the applicant had mentioned his intention

thereby to clarify some matters.  He had closed in stating his interest

in a personal conversation concerning the past and future developments

on the German media market.

65.   The Commission considers that the applicant's circular letter has

to be seen in the light of the discussion in German media concerning

the situation of the news agency D. and the applicant's part in the

developments, and in particular the news agency's press release of

16 August 1984.  The news agency had thereby brought its controversies

with the applicant to the attention primarily of those connected to its

network.  Its publication contained serious attacks upon the

applicant's professional performance and reputation.  After the

applicant's claim for a reply had been refused by the news agency D.,

and his application for an injunction to enforce his right to reply in

the news agency's network had been dismissed at first instance, there

was sufficient cause for the applicant to react by other means to the

news agency's publication.  His choice of a limited circle of persons

in the news business as addressees of his comments does not, in this

situation, appear inappropriate.

66.   The Düsseldorf Court of Appeal founded its decision of

11 December 1986 on unfair competition law.  It assumed a competitive

relationship between the applicant and the news agency D., and also the

applicant's competitive intent in respect of his press release.  The

Court of Appeal considered that the applicant had adversely commented

upon D.'s activities in that he had endorsed the factual statements and

value judgments contained in the enclosed press articles by confirming

them in his circular letter as being essentially correct.  The question

whether the detrimental statements concerning D. had been correct

justifying the negative judgments based thereupon was left open.

67.   The Federal Constitutional Court, in its decision of

4 October  1988, confirms this evaluation.  According to the Federal

Constitutional Court, freedom of expression only prevailed over private

and in particular economic interests if a detrimental statement in the

field of competition was motivated by a concern for interests of public

importance and contributed to the exchange of opinions on matters of

considerable public interest.  The applicant's circular letter was

found to be in pursuance of commercial self-interest, not aimed at

influencing public opinion.  The limited number of addressees of the

applicant's circular letter placed it outside the sphere of public

discussion and could not, therefore, justify it as reaction to the news

agency's press release with its depreciating remarks about the

applicant.

68.   The Commission considers that, in the circumstances of the

present case, these considerations appear not sufficient to justify the

prohibitory injunction complained of.

69.   The German courts emphasised the assumed competitive aspects of

the applicant's circular letter.  Yet, at the time in question, the

applicant was still involved in labour court proceedings against the

news agency concerning his dismissal, and only subsequently did he open

his own news agency.  Furthermore, the concluding paragraph of his

accompanying letter seeking a personal discussion of the past and

future developments on the news market did not solely serve the purpose

of preparing future business relations.  The applicant's legitimate

interest in defending himself against the news agency's public attack

on his personal and professional reputation, the inefficiency of court

remedies to enforce his claim to an immediate reply in the news

agency's network, and the moderate and cautious drafting of his

circular letter which mainly referred to an enclosed selection of

previously published press articles are ignored or underrated.  The

German courts' standard that an adverse statement must be motivated by

a concern for interests of public importance and contribute to an

exchange of opinions on matters of considerable public interest does

not fairly balance the right to freedom of expression, in the

applicant's situation as described above, and the employer's private

interests affected by such statements.

70.   Consequently, the Commission finds that the prohibitory

injunction issued by the Düsseldorf Court of Appeal and confirmed by

the Federal Court of Justice as well as, from the constitutional point

of view, by the Federal Constitutional Court, was not proportionate to

the legitimate aim pursued.  Accordingly, this interference 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.

D.    Conclusion

71.   The Commission concludes, unanimously that there has been a

violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission            President of the Commission

      (H.C. Krüger)                     (C.A. Nørgaard)

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                             Item

_________________________________________________________________

11 April 1989               Introduction of the application

7 June 1989                 Registration of the application

Examination of Admissibility

7 May 1990                  Commission's decision to invite

                            the Government to submit observations on

                            the admissibility and merits of the

                            application

15 October 1990             Government's observations

12 December 1990            Applicant's observations in reply

5 September 1991            Commission's decision to hold an oral

                            hearing

3 December 1991             Oral hearing on admissibility and

                            merits; Commission's decision to declare

                            the application admissible

Examination of the merits

4 April 1992          )     Commission's consideration of the

5 September 1992      )     state of proceedings

7 January 1993              Commission's deliberations on the

                            merits, final vote and adoption of

                            the Report