Lexploria

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. KRÃœGER, 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 FÃœR

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)

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ÖSTERREICHISCHE SCHUTZGEMEINSCHAFT FÜR NICHTRAUCHER AND ROBERT ROCKENBAUER v. AUSTRIA

ÖSTERREICHISCHE SCHUTZGEMEINSCHAFT FÜR NICHTRAUCHER AND ROBERT ROCKENBAUER v. AUSTRIA

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