Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12278/86

by MARKT INTERN Verlag GmbH,

Günter WEBER and

Hans-Wilhelm BEYEN

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 27 May 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 May 1986 by

MARKT INTERN VERLAG GmbH, Günter WEBER and Hans-Wilhelm BEYEN against

the Federal Republic of Germany and registered on 16 July 1986 under

file No. 12278/86;

Having regard to the observations submitted by the respondent

Government on 3 September 1990 and the observations in reply submitted

by the applicants on 26 October 1990;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicants, may be

summarised as follows:

The first applicant is a publishing firm whose registered

office is in Düsseldorf in the Federal Republic of Germany. It

publishes weekly news-sheets aimed at specialised commercial sectors.

The second and third applicants, German citizens born in 1940

and 1953, respectively, reside at Düsseldorf. They are the first

applicant's managers and also act as the editor and a journalist,

respectively, of the weekly news-sheets issued by the first applicant.

Before the Commission the applicants are represented by Mr.

Ch. Tomuschat, a professor of law at the University of Bonn.

The present application does not relate to the first

applicant's previous application No. 10572/83, leading to the Markt

Intern Verlag GmbH and Klaus Beermann judgment of the European Court

of Human Rights of 20 November 1989 (see Eur. Court H.R., Series A No.

165).

A. Particular circumstances of the case

I.

The present application concerns proceedings instituted by the

S. company against the first applicant based on the German Unfair

Competition Act (Gesetz gegen den unlauteren Wettbewerb, see below

Relevant domestic law). The S. company specialises in home

electronics, in particular video appliances which are based on the

Beta video system developed by the S. company. The proceedings

concerned in particular statements made by the applicants about the

sales, and the position on the German market, of the Beta video

equipment.

In a news-sheet of 31 August 1982, addressed to the

specialised retail trade, the first applicant wrote, inter alia:

[Translation]

"It could well be that the S. company itself no longer knows

in which channels alien to the retail trade its Betamax

appliances are placed and sold off ... As retail traders,

however, you should be well-informed throughout the Federal

Republic about all such S. placings 'sympathetic to the

retail trade'. That's why [the first applicant] is

launching the first comprehensive manufacturer enquiry

exclusively for its subscribers! You should participate and

carefully fill out the questionnaire enclosed in this

edition on the basis of your information and experience.

[The first applicant] will compile on the basis of all

questionnaires received statistics about the S. company ..."

[German]

"Natürlich kann es sein, dass S. selbst nicht mehr weiss, in

welchen fachhandelsfremden Kanälen seine Betamax-Geräte

überall plaziert und verschossen werden ... Sie als

Fachhändler jedoch sollten im gesamten Bundesgebiet über

alle diese 'fachhandelsfreundlichen' S.-Plazierungen bestens

Bescheid wissen. Darum startet [die Beschwerdeführerin]

exclusiv für [ihre] Abonnenten die erste Hersteller-

Vollerhebung! Machen Sie mit, und füllen Sie den dieser

Ausgabe beiliegenden Fragebogen nach Ihren Informationen und

Erfahrungen sorgfältig aus. [Die Beschwerdeführerin] stellt

aus allen eingehenden Umfragebögen die S.-Vertriebs-

Statistik zusammen ..."

The news-sheet contained a questionnaire which was headed:

"Provide yourselves and your colleagues with a survey of the presence

and disintegration of the S. company in sales markets other than those

of the retail trade" ("Verschaffen Sie sich und Ihren Kollegen einen

Überblick über Präsenz und Verriss von S. in fachhandelsfremden

Kanälen").

After having published first results of this enquiry on 14

October 1982, the applicants communicated to the S. company, by telex

of 7 December 1982, a number of critical remarks made by specialised

retailers in the questionnaires returned by them. Twelve retail firms

were named as protesting against the sales practice of the S. company.

There followed a summary of the main points of their criticism. The

telex continued:

[Translation]

"One retailer from this group: 'The product image is already

ruined. The serious retail trade avoids the negative trend

of the trade mark which now affects the whole Beta system.

The decline of the Beta group appears irreversible. It is

already too late'."

[German]

"Ein Händler aus dieser Gruppe: 'Das Produkt-Image ist

bereits ruiniert. Der gute Fachhandel meidet den negativen

Sog der Marke, der schon auf den gesamten Beta-Bereich

ausstrahlt. Die Talfahrt der Beta-Gruppe scheint nicht

umkehrbar. Es ist bereits zu spät'."

The end of the telex was phrased in the following terms:

[Translation]

"In order to be able to inform the specialised retail trade

we ask you to tell us whether - apart from occasional

'assurances of faithfulness' - the S. company intends at

last to do something for the retail trade in the near future."

[German]

"Um den Fachhandel informieren zu können, bitten wir Sie

uns mitzuteilen, ob S. - abgesehen von gelegentlichen

'Treuebekenntnissen' - in absehbarer Zukunft einmal etwas

für den Fachhandel tun will."

The S. company did not reply to this telex. However, on 10

December 1982 it obtained a preliminary injunction (einstweilige

Verfügung) from the Cologne Regional Court (Landgericht) prohibiting

the applicants from publishing the above-mentioned verbatim statement

of a retailer.

II.

Subsequently the S. company brought an action against the

applicants seeking the final prohibition of the publication of this

statement under the Unfair Competition Act or the Civil Code

(Bürgerliches Gesetzbuch). It claimed that the statement was

incorrect in that the share of the Beta equipment in the market had

increased from 14% at the end of 1981 to 17% in the third trimester of

1982. It considered the publication of this statement as part of a

systematic campaign launched by the applicants against the S. company,

aiming at discrediting the Beta system and promoting the

competitiveness of other firms in the German market. It described

this as an inadmissible call for boycotting the trade mark S. The firm

S. further sought an order obliging the applicants to inform it of the

scope of dissemination of the incriminated statement and a declaratory

judgment establishing the applicants' liability to compensate the S.

company for all damage resulting from the publication of this

statement.

The applicants contested the justification of the action. They

denied the existence of a danger of a publication of the statement, in

particular as it represented their own view. They observed that the

statement was a subjective value judgment by a third person on the

market chances of the Beta system which had a basis in the facts as

reflected in several press publications. Its communication to the S.

company had been made in the exercise of the applicants' freedom of

press which included the right to seek information and was thus

covered by Article 5 para. 1 of the Basic Law (Grundgesetz; see below

Relevant domestic law). The relevant telex was an invitation for

comments by the producer concerned. It showed that the applicants did

not intend an uncontrolled publication of the results of their

enquiry. They claimed to be entitled to publish the statement as they

were not competitors of the S. company.

On 11 March 1983 the Regional Court rejected the action. It

considered that the Unfair Competition Act was inapplicable as the

communication of the statement to the plaintiff had not been made

for purposes of competition. It also rejected the claim under the

Civil Code, holding that the incriminating statement did not interfere

with the S. company's business. It was not a boycott call, but a

value judgment and the S. company had not shown that it was in essence

incorrect.

III.

The S. company filed an appeal (Berufung) against this

judgment which the Cologne Court of Appeal (Oberlandesgericht) on 28

September 1984 partly upheld. It quashed the Regional Court's

judgment and issued an order prohibiting the applicants from

publishing solely the first two sentences of the retailer's statement

(i.e. "The product image is already ruined. The serious retail trade

avoids the negative trend of the trade mark which now affects the

whole Beta system"). The S. company's further claims for information

and compensation were however rejected.

The Court of Appeal considered that there still existed a

danger that the applicants would publish the statement as if it

reflected their own views. Such a publication infringed Section 1 of

the Unfair Competition Act as it was made for purposes of competition.

Other motives did not completely supersede the applicants' intention

to promote the competitiveness of other producers to the detriment of

the plaintiff firm. Retailers were incited to avoid the negative

trend of the trade mark S. which allegedly affected the whole Beta group

and thus to turn to the video systems of other producers competing

with the plaintiff firm. While the publication of the statement could

not be qualified as a boycott call, it nevertheless directly

interfered with competition. It was part of a series of other

critical statements of the first applicant concerning the S. company

and went beyond the functions of the press.

The Court of Appeal observed inter alia that the third and

fourth sentences concerning in particular the decline of the Beta

group were of a factual nature and accessible to proof. The Court

regarded it as true that the Beta system's share in the market had in

fact decreased since 1980 both in Germany and in the United States.

The publication of this part of the statement, including the value

judgment that the trend was irreversible and that it was already too

late, could not be prohibited under Section 1 of the Unfair

Competition Act even if it was made for purposes of competition. It

was not contrary to honest practices (gute Sitten) as it was the

function of the press to inform the public of developments of general

importance and contribute to the formation of public opinion.

With regard to the first two sentences, however, the Court

stated:

[Translation]

"The defendants have not submitted any indications which

could justify such a value judgment. The same applies for

the second sentence of the statement. The submissions of

the defendants do not provide the slightest basis for the

assumption that the S. trademark entails or generally has a

'negative trend'. It can also not be said that the negative

trend of the S. trademark now affects the whole Beta system.

The first two sentences of the statement are therefore to be

qualified as disparaging criticism. Even if due account is

taken of the impact of Article 5 para. 1 of the Basic Law on

the interpretation of Section 1 of the Unfair Competition

Act, their dissemination must be qualified as a breach

against honest practices within the meaning of this

provision ..."

[German]

"Die Beklagten haben keinerlei Anhaltspunkte vorgetragen,

die ein solches Werturteil zu rechtfertigen vermöchten. Das

gleiche gilt für den zweiten Satz der Äusserung. Für die

Annahme, die Marke S. bewirke oder habe allgemein einen

'negativen Sog', bietet der Vortrag der Beklagten nicht die

geringste Grundlage. Dann kann es auch nicht sein, dass der

negative Sog der Marke S. auf den gesamten Beta-Bereich

ausstrahlt. Die ersten beiden Sätze der Äusserung sind

mithin als reine Schmähkritik zu werten. Ihre Verbreitung

ist auch bei gebührender Berücksichtigung der Einwirkung von

Artikel 5 Abs. 1 Grundgesetz auf die Auslegung von Abs. 1

UWG als ein Verstoss gegen die guten Sitten im Sinn dieser

Vorschrift zu qualifizieren ..."

IV.

On 11 July 1985 the Federal Court of Justice

(Bundesgerichtshof) refused the applicants leave to appeal.

V.

The applicants' subsequent constitutional complaint

(Verfassungsbeschwerde) was dismissed by the Federal Constitutional

Court on 29 January 1986 as not offering sufficient prospects of

success.

In its decision the Court considered that the applicants'

right to seek information, being included in the freedom of the press,

was not affected by the Court of Appeal's decision. Insofar as that

decision had assumed a risk that the applicants would publish the

incriminated statement for purposes of competition, this was an

evaluation of the evidence and an application of the ordinary law which

could not be controlled by the Court. The Court further considered

that in prohibiting the publication of the statement the applicants'

right to freedom of the press had not been disregarded. This freedom

had been referred to in the reasons of the Court of Appeal's decision.

In the present case the freedom of expression and of the press did not

override the legal interests protected by Section 1 of the Unfair

Competition Act, notwithstanding the use of means which were generally

protected by Article 5 para. 1 of the Basic Law. Thus, the prohibited

statement did not serve to influence public opinion on a matter of

public importance, but only to promote, in the context of commercial

competition, certain economic interests to the detriment of others.

B. Relevant domestic law

Article 5 paras. 1 and 2 of the Basic Law of the Federal

Republic of Germany states:

[Translation]

"(1) Everyone shall have the right freely to express and

disseminate his opinion by speech, writing and pictures and

freely to inform himself from generally accessible sources.

Freedom of the press and freedom of reporting by means of

broadcasts and films are guaranteed. There shall be no

censorship.

(2) These rights are limited by the provisions of the

general laws, the legal provisions for the protection of

youth, and by the right to inviolability of personal

honour ..."

[German]

"(1) Jeder hat das Recht, seine Meinung in Wort, Schrift und

Bild frei zu äussern und zu verbreiten und sich aus

allgemein zugänglichen Quellen ungehindert zu unterrichten.

Die Pressefreiheit und die Freiheit der Berichterstattung

durch Rundfunk und Film werden gewährleistet. Eine Zensur

findet nicht statt.

(2) Diese Rechte finden ihre Schranken in den Vorschriften der

allgemeinen Gesetze, den gesetzlichen Bestimmungen zum

Schutze der Jugend und in dem Recht der persönlichen Ehre ..."

Section 1 of the Unfair Competition Act of 1909 provides:

[Translation]

"Whoever, in the course of business activities, commits, for

the purpose of competition, acts contrary to honest

practices, may have proceedings taken against him for an

injunction and damages."

[German]

"Wer im geschäftlichen Verkehr zu Zwecken des Wettbewerbes

Handlungen vornimmt, die gegen die guten Sitten verstossen,

kann auf Unterlassung und Schadensersatz in Anspruch

genommen werden."

COMPLAINTS

1. The applicants allege a violation of their right to freedom of

expression guaranteed by Article 10 of the Convention.

They submit that they have done no more than communicate to

the S. company the results of an enquiry among specialised retailers

and ask that company for its comments as required by journalistic

fairness. They had not published the statements concerned and no

decision had been taken concerning the eventual report to be

published. In effect they were forbidden to make preparatory

investigations for a future article which might have interfered with

the interests of the company. This was a serious restriction of

investigative journalism, which was essential for the effective

exercise of freedom of the press.

2. Under Article 14 of the Convention taken together with Article

10 the applicants complain of discrimination in that they did not

benefit from the freedom of the press on account of the political

nature of their publications.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1986 and registered

on 16 July 1986.

Examination of the case was adjourned pending the outcome of

the first applicant's previous Application No. 10572/83, Markt Intern

Verlag GmbH and Klaus Beermann v. the Federal Republic of Germany.

On 20 November 1989 the Court gave its judgment in this case (Eur.

Court H.R., Series A No. 165).

On 7 May 1990 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

The Government's observations were received by letter dated 3

September 1990; the applicant's observations were dated 26 October

1990.THE LAW

1. The applicants complain of the decisions of the German courts

which prohibited them henceforth from publishing the contested

statements. The applicants rely on Article 10 (Art. 10) of the

Convention which states, insofar as it is relevant:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and to

receive and impart information and ideas without

interference by public authority and regardless of

frontiers ...

2. The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the

judiciary."

The respondent Government submit that there has been no

interference with the applicants' rights under Article 10 (Art. 10) of

the Convention. The Government note the applicants' submissions

according to which they contest that they would ever have published

the contested statements as their own. The Government further

consider that the statements concerned, viewed in their entire

context, came close to a call for a boycott of the S. company.

The Commission notes that the German courts prohibited the

applicants from publishing certain statements in the future. The

statements conveyed information of a commercial nature. Thus the

applicants are henceforth unable to "impart information". The

Commission finds that this prohibition constituted an interference by

a public authority with the exercise of the applicants' rights under

Article 10 para. 1 (Art. 10-1) of the Convention. Its next task is

therefore to examine whether such interference was justified under

Article 10 para. 2 (Art. 10-2).

The first question under Article 10 para. 2 (Art. 10-2) of the

Convention is whether the interference was "prescribed by law" within

the meaning of this provision.

The applicants submit that Section 1 of the Unfair Competition

Act, being the legal basis for the prohibition, is not sufficiently

precise, in particular as regards its scope of application to press

publications.

The Government contend with reference to the judgment of the

Court in the Markt Intern case (Eur. Court H.R., p. 18 et seq.) that

Section 1 of the Unfair Competition Act complies with the requirements

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

The Commission recalls the judgment in the Markt Intern case

in which the Court found that Section 1 of the Unfair Competition Act

satisfied the requirements of Article 10 para. 2 (Art. 10-2) of the

Convention as a legal basis for the interference in that case with the

first applicant's rights to impart information. The Court found in

particular that such laws were inevitably framed in a general manner

and their interpretation and application had necessarily to be left to

subsequent practice (Eur. Court H.R., ibid., p.18 et seq., para. 30).

It is true that the previous Markt Intern case concerned the

prohibition to publish statements which had previously already been

published. However, the Commission finds that the Court's

considerations are equally valid in the present case, concerning a

prohibition to publish statements which had until then never been

published.

The restrictions imposed on the applicants were "prescribed by

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

As regards the question whether the interference served a

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

applicants submit that neither the protection of public order nor of

the rights and reputation of others were relevant, the aim of the

Unfair Competition Act being primarily the protection of the concept

of fair competition in general. In the present case it had been the

aim of the communication of the statement to the S. company to give

the latter the possibility to protect its reputation by replying to

the allegations made against it.

The Government reply that the interference served the aim of

protecting the reputation and rights of others within the meaning of

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

The Commission recalls that in both the above-mentioned Markt

Intern case and in the Barthold case the Court found that Section 1 of

the Unfair Competition Act aimed at "the protection of the reputation

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

(Art. 10-2) of the Convention (see Eur. Court H.R., ibid. p. 19,

para. 31; Barthold judgment of 25 March 1985, Series A No. 90, p. 51,

para. 23). The Commission sees no need to decide differently in the

present case.

Finally, the Commission must examine whether the interference

was "necessary in a democratic society" within the meaning of Article

10 para. 2 (Art. 10-2) of the Convention.

The applicants contest that this condition had been met. The

statements at issue were made by a retailer, and it was

disproportionate to prohibit their publication as if they represented

the applicant's own views. In fact, the contents and form of a

possible publication had not been decided upon. The S. company was

merely asked for comments. The statements were not in themselves

objectionable. They were critical but based on reality; the

applicants had not invented them. The correctness of the statements

has meanwhile been confirmed by subsequent developments in that the

Beta system has disappeared from the market.

The applicants submit that the prohibition of the statements

amounted to advance censorship on investigative journalism before any

publication had been made. Such a prohibition implied that public

critical discussion of the commercial success of a company would be

generally inadmissible.

The Government submit that the prohibited statements contained

allegations of fact. The Cologne Court of Appeal expressly did not

prohibit the publication of statements concerning value judgments.

Moreover, while the statements at issue did indeed stem from a third

person, namely a retailer, it could reasonably be assumed that the

applicants would publish them as their own in the future. The

preventive prohibition of the statements was necessary in order to

effectively protect the rights of the S. company.

The Commission recalls that the term "necessary in a

democratic society" within the meaning of Article 10 para. 2

(Art. 10-2) of the Convention implies that the interference must

correspond to a "pressing social need" and be proportionate to the

legitimate aim pursued. In determining whether an interference is

"necessary in a democratic society" the Convention organs must also

take into account that a margin of appreciation is left to the

Contracting States (see Eur. Court H.R., Barthold judgment, ibid., p.

24 et seq., para. 55; Markt Intern Verlag GmbH and Klaus Beermann

judgment, ibid., p. 19 et seq., para. 33).

The Commission further recalls its case-law according to which

a prohibition to publish true statements will generally require a

strict test of necessity (see Markt Intern Verlag GmbH and Klaus

Beermann v. the Federal Republic of Germany, Comm. Report 18.12.87,

Eur. Court H.R., Series A No. 165, p. 39, para. 234).

However, the Commission observes that in the present case the

national courts concerned, in particular the Cologne Court of Appeal,

considered that the applicants had not provided a sufficient factual

basis which supported the statements at issue.

Moreover, the Cologne Court of Appeal, which noted that the

applicants had previously published critical remarks about the S.

company, could reasonably assume that they would eventually also

publish the contested statements. In the Commission's opinion, it

would have been ineffective if, as a more lenient measure, the German

courts had first waited until the statements were published, and only

then prohibited their renewed publication.

Given the narrow scope of the prohibition issued by the German

courts, the Commission furthermore considers that the present case

does not raise an issue of preventive censorship as the applicants

were not obliged to submit statements which they wished to publish in

advance to the authorities for approval. Preventive censorship must

in particular be distinguished from the present case which concerns

the specific issue of a dispute before a court between private

parties.

In fact, there was no general prohibition at all for the

applicants to publish statements about the S. company. Rather, the

courts carefully distinguished between statements which could and

those which could not be published, and the prohibition was restricted

to two sentences. Thus, there is no basis for the assumption that the

applicants have been banned from carrying out research on the S.

company.

On the whole the Commission considers that the German courts,

in particular the Cologne Court of Appeal, carefully weighed the

competing interests at stake. If, as a result, the Court of Appeal

considered that the statements concerned lacked a sufficient factual

basis and were of a disparaging nature, it cannot be said that this

assessment went beyond the margin of appreciation left to national

authorities.

The Commission therefore finds that the interference

corresponded to a "pressing social need" and that it was not

disproportionate to the aim pursued. The interference could resonably

be considered "necessary in a democratic society" within the meaning

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

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Insofar as the applicant further complains under Article 14

(Art. 14) of the Convention, taken together with Article 10 (Art. 10),

of discrimination in that they do not benefit from the freedom of the

press on account of the political nature of the publication, the

Commission finds that no issue arises under these provisions. It

follows that the remainder of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MARKT INTERN VERLAG GMBH, WEBER AND BEYEN v. GERMANY

MARKT INTERN VERLAG GMBH, WEBER AND BEYEN v. GERMANY

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