FIFTH SECTION

Application no . 45192/09 T IERBEFREIER e .V . against Germany lodged on 20 August 2009

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Tierbefreier e.V., is an association which is registered in Germany . It was represented before the Court by Mr K. Leondarakis, a lawyer practising in Göttingen.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant association, may be summarised as follows.

1. Background to the case

3 . In March 2003, the journalist M. entered into a contract of employment with the C. company, a laboratory performing animal experiments on monkeys for pharmaceutical companies. During his working hours, M., using a hidden camera, produced 40 hours of film footage which documented the treatment of the laboratory animals within the C. company ’ s premises.

4 . Having terminated his employment contract, M. prepared a footage of around twenty minutes which he offered to a major German broadcasting company. On 9 December 2003 the broadcasting company aired a film of about nine minutes under the title “animal experiments for profit”. The film showed a number of different scenes from within the C. company ’ s premises, accompanied by a critical commentary. The scenes primarily concerned the animals ’ accommodation and the way they were treated by staff. During the month of December 2003, other broadcasting companies showed excerpts from the footage.

5 . Later on, a film with the title “Poisoning for profit”, which used largely the same material that had already been aired on television, was produced. The applicant association made the film available for download on its website.

6 . The C. company filed requests for civil injunctions against the dissemination of the film footage by the journalist M. and by another animal rights activist. These requests were only partially granted by the Hamm Court of Appeal on the grounds that the dissemination of the footage fell under these persons ’ freedom of expression, as long as they did not make unfounded or sensationalist reproaches.

2. Proceedings against the applicant association

7 . On 20 January 2004 the Münster Regional Court , on the C. company ’ s request, ordered the applicant association to desist from publicly showing the film footage taken by the journalist M. on their premises or to make it otherwise available to third persons.

8 . On 25 February 2004, the Regional Court confirmed the injunction. It considered that the publication and dissemination of the footage interfered with the C. company ’ s personality rights, as the footage was produced without that company ’ s consent within its private premises. According to the Regional Court , the interference was unlawful because the C. company ’ s interest that the footage should not be published outweighed the applicant association ’ s interest in its publication.

9 . On 21 July 2004, the Hamm Court of Appeal rejected the applicant association ’ s appeal. That court confirmed that the C. company had an injunction claim under section 1004 in conjunction with section 823 of the Civil Code and Article 2 § 1 of the Basic Law and section 186 of the Criminal Code (see relevant domestic law, below). The Court of Appeal considered that the C. company was not obliged to tolerate the publication and dissemination of the footage by the applicant association, because the applicant association had demonstrated that it did not respect the ground rules of intellectual debate ( Regeln des geistigen Meinungskampfs ) . The court observed that it had allowed other persons, to which these circumstances did not apply, to continue the dissemination of the footage as long as this was not accompanied by unfounded or sensationalist reproaches.

10 . The Court of Appeal confirmed that the publication of the footage interfered with the C. company ’ s personality rights, which encompassed the right not to be spied upon by use of hidden cameras. Even though the footage was produced in an illegal way, the court considered that the dissemination of such material was protected by the applicant association ’ s right to freedom of expression. In the instant case, this right was further enforced by the special reference to animal rights in Article 20 a of the Basic Law. There was no doubt that animal experiments were a controversial issue, which concerned the public in a serious way.

11 . Under the relevant case-law of the Federal Constitutional Court , it had thus to be determined if the means employed had been proportionate to the aim pursued. The court considered, on the one hand, that the published material had been procured in an unlawful way and was to be used against the very person who had been betrayed. Such material could only be published if the importance of the information for the public clearly outweighed the disadvantages suffered by the injured party and by the legal order as a whole.

12 . Given that the information used had been procured in an unlawful way, it was decisive whether the person using this information was respecting the ground rules of intellectual debate. If a person did not abide by these rules, his right to freedom of expression had to cede. The Court of Appeal considered that numerous examples from the case-file demonstrated that this prerequisite was not met in the applicant association ’ s case.

13 . The court quoted a number of sentences from the applicant association ’ s homepage, such as the sentence:

“A[n animal ’ s] life will also be more important for us than a broken door, a destroyed laboratory or an incinerated meat transport.”

When third persons spilled artificial blood on a business associate of the C. company, the applicant association announced the publication of photographs and commented on the event as follows:

“The [applicant association] has nothing to do with spilling artificial b lood on the monkey dealer , but solidarises with the animal rights activists who have performed this act.”

According to the Court of Appeal, these quotations demonstrated that the applicant association approved of the commission of criminal offences. With the following quotation, the applicant association incited third persons to commit criminal acts by offering its support:

“We carry out public relations and press work for so-called autonomous animal right activists who risk public prosecution in order to save animal life; furthermore, we show our solidarity by granting legal aid.”

14 . The court considered that the applicant association was not aware of the fact that, by interfering with the C. company ’ s personality rights through dissemination of unlawfully attained information, the applicant association might entice third parties to break into the C. company ’ s private sphere. Conversely, it even enhanced that risk. On its website, the applicant association reproached the C. company of committing “murder and torture”. Even if such unfounded and sensationalist statements, considered on their own, might be covered by the right to freedom of expression, they indicated that the applicant association intended to use the footage for defaming the C. company ’ s reputation. The applicant association further supported interferences with the private sphere of the C. company ’ s staff members by reporting on gatherings in front of private homes – which the applicant association labelled as “home-demos”– and by disseminating flyers and posting stickers in the private neighbourhood of the C. company ’ s staff members. Even if the applicant association or its members might not have taken part personally in these actions, they supported such actions not only by reporting on their website, but, to all appearances, also in a financial way. On its homepage, the applicant association published the sentence:

“The action groups act in a mostly autonomous way and are financially supported by the association.”

15 . The applicant association had, furthermore, technically abused the internet as the C. company had established that the applicant association had highjacked their website.

16 . The court considered that the applicant association, by employing these unfair means, attempted to force the C. company to close down its business activities, thereby even accepting the use of violence. This was confirmed by the applicant association ’ s declaration on its website:

“The [applicant association] does not request “better accommodation” or “better treatment” of animals which are killed in animal experiments, but demands the immediate abol ition of all animal experiments. ”

17 . It was not for the court to evaluate the aims pursued by the applicant association. The issues raised by the applicant association were part of a public debate and the applicant was certainly allowed publicly to express its opinion and to demand the abolition of animal experiments. However, when assessing the relation between the means employed and the aims pursued, it had also to be taken into account if the person concerned by the interference with their personality rights had to tolerate the dissemination of the unlawfully acquired information by a specific person. Against the background laid out above, the C. company could not be expected to tolerate that an adversary such as the applicant association used film footage that had been produced in an unlawful way.

18 . The Regional Court finally pointed out that the judgment exclusively concerned the use of the unlawfully produced footage. The applicant association remained fully entitled to express its criticism on animal experiments in other, even one-sided ways.

19 . On 30 January 2009 the Federal Constitutional Court , relying on its Rules of Procedure, refused to admit the applicant association ’ s constitutional complaint without giving further reasons.

B. Relevant domestic law and practice

20 . The relevant provisions of the German Basic Law read as follows:

Article 5

“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.”

Article 20 a

Protection of the natural foundations of life and animals

“Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

21 . The relevant provisions of the German Civil Code read as follows:

Section 823

“(1) A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person, is liable to make compensation to the other party for the damage arising from this.

(2) The same duty is held by a person who commits a breach of a statute that is intended to protect another person...”

Section 1004

“(1) If ownership is interfered with by means other than removal or retention of possession, the owner may require the disturber to remove the interference. If further interferences are to be feared, the owner may seek a prohibitory injunction.”

Section 186 of the Criminal Code reads as follows:

Defamation

“Whosoever asserts or disseminates a fact related to another person which may defame him or negatively affect public opinion about him, shall, unless this fact can be proven to be true, be liable to imprisonment of not more than one year or a fine and, if the offence was committed publicly or through the dissemination of written materials (section 11 (3)), to imprisonment of not more than two years or a fine.“

22 . According to the constant case-law of the German civil courts, section 823 §§ 1 and 2 in conjunction with section 1004 (in analogous application) of the Civil Code and sections 185 et seq. of the Criminal Code grant any person whose personality rights concretely risk being violated by another person a claim to compel that other person to refrain from performing the impugned action.

COMPLAINTS

23 . The applicant association complained under Article 10 of the Convention about the civil injunction prohibiting further dissemination of the footage. It further complained under Article 6 of the Convention about the alleged unfairness of the proceedings before the domestic courts and under Article 14 of the Convention about having been discriminated against vis-à-vis other persons who had not been prevented from further disseminating the same footage.

QUESTIONS

1. Has there been a violation of the applicant association ’ s right to freedom of expression, contrary to Article 10 of the Convention?

How are the “ground rules of intellectual debate” (“ Regeln des geistigen Meinungskampfs ”) defined? What role (if any) do these rules play within the context of Article 10 of the Convention?

2. What was the exact content of the film “Poisoning for profit”, which formed the subject matter of the injunction proceedings against the applicant association?

3. Has the ap plicant association suffered discrimination , contrary t o Article 14 of the Convention read in conjunction with Article 10 ?

In particular, have there been sufficient grounds for treating the applicant association differently than the journalist M. in the parallel proceedings before the Hamm Court of Appeal (3 U 77/04)?