DISSENTING OPINION OF JUDGE MARTENS, APPROVED BY JUDGE MACDONALD

(Translation)

1.   I am entirely convinced of the correctness of the Court’s view that the contested article published by markt intern is in principle protected by the freedom of expression secured under Article 10 (art. 10) of the Convention. The socio-economic press is just as important as the political and cultural press for the progress of our modern societies and for the development of every man. In this connection I refer to the joint dissenting opinion of Judges Gölcüklü , Pettiti , Russo, Spielmann, De Meyer, Carrillo Salcedo and Valticos (hereinabove "the joint dissenting opinion"), and I express my agreement with part I of that opinion.

I also share the Court’s opinion that the injunction issued by the Federal Court of Justice constituted an "interference by public authority" which infringes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10 (art. 10-2). Here again I refer to the joint dissenting opinion.

Finally, I agree with the Court that these requirements are satisfied as regards the necessity of being "prescribed by law" and having a "legitimate aim", but I cannot follow the Court in its view that, taking account of the margin of appreciation which the Contracting States enjoy, it should accept that the interference was "necessary in a democratic society". On this point I feel that it is necessary to take the analysis set out in the joint dissenting opinion a step further; indeed this is one of the reasons why I did not feel that I could fully support it.

2.   In relation to the third sub-paragraph of paragraph 34 of the Court’s judgment, I should like to observe in the first place that, in carrying out the review referred to in the preceding paragraph, the Court ought not to have taken into consideration the decisions of the Hamburg Regional Court and the Hanseatic Court of Appeal, which were both quashed by the decision of a higher court: that of the Federal Court of Justice, which is the only relevant decision as the Constitutional Court found the appeal inadmissible.

3.   The Federal Court takes the view that the question whether the contested article published by markt intern was acceptable is to be classified under the law on unfair competition and it is this classification, and the assessments inferred therefrom , which the European Court has endorsed (see paragraphs 33, 35, 36 and 37 of its judgment). In so doing, the European Court has subscribed to an approach which, in my view, is incompatible with the right to the freedom of expression, which the Convention also guarantees to a partisan press organ.

4.   The law on unfair competition governs the relationships between competitors on the market. It is based on the assumption that in engaging in competition the competitors seek only to serve their own interests, while attempting to harm those of others. That is why (as the Federal Court notes in its judgment) the German law on unfair competition prohibits persons from engaging in competition by making denigrating statements about their competitors. It is permissible for a competitor to criticise another publicly only if he has sufficient reasons for so doing and if the nature and scope of his criticism remain within the limits required by the situation. In this field, the prohibition on publishing criticism is therefore the norm and it falls to the person who takes the risk of publishing such criticism to show that there were sufficient grounds for his criticism and that it remains within the strictest limits. In considering whether this proof has been furnished, the court weighs up only the interests of the two competitors.

In the field of freedom of expression the converse is true. In this field the basic assumption is that this right is used to serve the general interest, in particular as far as the press is concerned, and that is why in this context the freedom to criticise is the norm. Thus in this field it falls to the person who alleges that the criticism is not acceptable to prove that his claim is well-founded. In determining whether he has done so, the court must weigh up the general interest, on the one hand, and the individual interests of the party who claims to have been injured, on the other.

5.   It follows that to classify under the law on unfair competition the question whether an article published by an organ of the press is acceptable is to place that organ of the press in a legal position which is fundamentally different from that to which it is entitled under Article 10 (art. 10) of the Convention and one which is clearly unfavourable to it. That is why, in my view, for that organ of press, such a classification constitutes a considerable restriction on the exercise of the freedoms guaranteed to it under Article 10 (art. 10). It should therefore be asked whether it can be necessary in a democratic society to restrict the rights and fundamental freedoms of an organ of the press in this way solely because that organ has espoused the cause of specific economic interests, namely those of a particular sector of a specialised trade. I am in no doubt that this question must be answered in the negative. This is clear from the fact that, as far as I know, such a rule extending the scope of the law on unfair competition to the detriment of freedom of the press is unknown in the other member States of the Council of Europe, and rightly so because, in certain respects, all newspapers may be regarded as partisan, having espoused the cause of certain specific interests.

6.   In my view, it follows from the foregoing that the Court ought to have considered that in this instance it had to examine a case in which the assessment of the national authorities suffered from a fundamental defect and that, accordingly, it ought itself to have determined whether the interference was necessary in a democratic society. Indeed, in such circumstances the margin of appreciation plays no role because this margin cannot justify assessments incompatible with the freedoms guaranteed under the Convention. I emphasise this point because, for my part, I do not deny that in the field of freedom of expression the European Court can limit the scope of its review by leaving the States a certain margin of appreciation.

7.   In this context I should like to make clear that I cannot agree, either, with the opinion of the Court in so far as it considers that in this instance, in order to determine whether the interference was proportionate, it is necessary to weigh up the requirements of the protection of the reputation and rights of others, on the one hand, and the publication of the information in question on the other (see paragraph 34 of the Court’s judgment).

In my view - and here too I find myself in agreement with the joint dissenting opinion - it is necessary to ask whether it was established convincingly (see the Barthold judgment of 25 March 1985, Series A no. 90, p. 25, § 58) that the private interests of the Club were more important than the general interest, in accordance with which not only the specialised reader but also the public as a whole should have been able to acquaint themselves with facts having a certain importance in the context of the struggle of small and medium-sized retail undertakings against the large-scale distribution companies. In answering this question, I, like the authors of the joint dissenting opinion, reach the conclusion that the reply must be negative. Like the Court (see paragraph 35 of its judgment), I take into account the fact that in a market economy an undertaking which seeks to set up a business inevitably exposes itself to close scrutiny of its practices. That is why the Club, which was in that situation, cannot in principle complain that the specialised press, which has given itself the task of defending the interests of its competitors on that market, analyses its commercial strategy and publishes its criticisms thereof. Such criticism contributes, as the Court stressed, to the openness of business activities. Since the freedom of expression also applies to "statements" which hurt, care should be taken not to find such criticism unacceptable too quickly simply because it harms the undertaking criticised. In this instance, it cannot be denied that the article published by markt intern is unfavourable to the Club and reveals a very critical attitude in the latter’s regard. On the other hand, it reported an incident which, as has not been contested, in fact occurred and it did not purport to offer a definitive assessment of the Club’s commercial practices, but invited retailers to supply additional information. For my part, I am not convinced that it is truly necessary to prohibit such an article in a democratic society.

8.   It is for the above reasons that I voted in favour of finding a violation of Article 10 (art. 10).

[*]  Note by the registry: The case is numbered 3/1988/147/201.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 165 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.

[1] See inter alia Klass and Others judgment, 6 September 1978 , Series A no. 28, p. 21, § 42, and Sunday Times judgment, 26 April 1979 , Series A no. 30, p. 41, § 65.

[2] Handyside judgment, 7 December 1976, Series A no. 24, p. 23, § 49; Sunday Times, cited above, p. 40, § 65; Barthold judgment, 25 March 1985, Series A no. 90, p. 26, § 58; Lingens judgment, 8 July 1986, Series A no. 103, p. 26, § 41; and Müller and Others judgment, 24 May 1988, Series A no. 133, p. 22, § 33.

[3] Above-mentioned judgments, Handyside , loc. cit.; Barthold , loc. cit.; Lingens , loc. cit.; and Müller and Others, loc. cit.

[4] Above-mentioned judgments, Handyside , loc. cit.; Sunday Times, loc. cit.; Lingens , loc. cit.; and Müller and Others, loc. cit.

[5] Barfod judgment, 22 February 1989 , Series A no. 149, p. 12, § 28; see also Barthold judgment, cited above, loc. cit.

[6] Above-mentioned judgments, Handyside , pp. 22-24, §§ 48-50; Sunday Times, pp. 36 and 38, §§ 59 and 62; Barthold , p. 25, § 55; Lingens , pp. 25-26, §§ 39-40; and Müller and Others, p. 21, § 32.

[7] Barthold judgment, cited above, p. 26, § 58.

[8] § 35 of the judgment.

[9] Moreover it was not an "isolated" case (§ 36 of the judgment), because in 1975 the undertaking in question had to reimburse 11,870 of its clients (§§ 20 and 34 of the judgment).

[10] §§ 33 and 37 of the judgment.

[11] § 33 of the judgment.

[12] Above-mentioned judgments in Handyside , p. 23, § 49; Sunday Times, p. 36, § 59; and § 33 of the present judgment.

[13] Article 19 of the Convention.

[14] Judgment in the case "relating to certain aspects of the laws on the use of languages in education in Belgium ", 23 July 1968 , Series A no. 6, p. 35, § 10.

[15] § 34 of the judgment.

[16] § 36 of the judgment.

[17] For the rest, we agree substantially with the arguments put forward in §§ 3 to 7 of the dissenting opinion of Judge Martens to which Judge Macdonald has given his approval (see pp. 28-30 below).

[18] See pages 23-25 above.