DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON AND BINDSCHEDLER-ROBERT

Although the facts of this case border on the trivial, they nevertheless require the Court to make an assessment, by no means easy, as to whether a given interference with the exercise of the right to freedom of expression was "necessary in a democratic society". We have voted against the finding of a violation as, with respect, we disagree with the majority of the Chamber on this assessment. The majority has set out its opinion on the relevant point in paragraph 58 of the judgment. Our view may be stated as follows.

The newspaper item which gave rise to this case and the court actions that followed are described in the judgment. As is evident from paragraph 18, the interim injunction issued on 15 September 1978 was very specific. The applicant was restrained from making certain public statements, but the injunction did not preclude him from making statements on other points concerning, or from contributing to public debate on, the veterinary services available in his city. It is equally evident from paragraph 22 of the judgment that the resultant interference was confirmed by the Hanseatic Court of Appeal on 24 January 1980 in a fully-reasoned ruling in which the relevant issues under German law were considered in detail. To this should be added that the decisions of the German courts were grounded on rules on professional conduct and unfair competition. Although restrictions on advertising and publicity by members of the liberal professions are well known in the States Parties to the Convention, the combined application of rules from these two categories is not the general practice.

The foregoing brief indications regarding the particular facts of the present case have to be kept in mind when determining whether the interference with the applicant ’ s freedom of expression was "necessary in a democratic society" for the purposes of paragraph 2 of Article 10 (art. 10-2) of the Convention. The Court has already, in previous judgments, expounded the principles governing how this problem should be approached (see notably the Handyside judgment of 7 December 1976, Series A no. 24, pp. 22-24, paras. 48-50, and the Sunday Tim es judgment of 26 April 1979, Series A no. 30, pp. 35-38, paras. 58-62). We take the liberty of referring also to the dissenting opinion expressed in the latter case by nine judges, a group to which we belonged (paras. 7-9).

According to the well-established case-law of our Court, it is for the national authorities to make the initial assessment of the necessity. In this respect, the Contracting States enjoy a margin of appreciation. The assessment has to be made in good faith, with due care and in a reasonable manner. There is no doubt, in our view, that this was so in the applicant ’ s case. As to the supervisory role of our Court, the main question for determination is whether the decisions of the German courts were proportionate to the legitimate aim pursued. The fact that the article in question was not solely devoted to generating publicity or even that its author had not had publicity in view as an objective does not alter this conclusion. The German courts were certainly not acting unreasonably in taking into consideration those aspects of the article which produced a publicity-like effect. Having due regard to the limited scope of the restrictions, we consider that the principle of proportionality was not transgressed. Accordingly, we cannot find a breach of Article 10 (art. 10) in the present case.

CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I have voted with the majority of my colleagues that there has been a breach of Article 10 (art. 10) of the European Convention, and I share their analysis notably as concerns the reasoning (at paragraphs 55 and following of the judgment) holding that the interference complained of went further than the requirements of the legitimate aim pursued and that the criterion applied by the Hanseatic Court of Appeal was not consonant with freedom of expression.

I nonetheless believe that the decision of our Court could have been more explicit with regard to freedom of expression in as much as the approach to the question of commercial advertising was also evoked by the applicant.

The Commission, rightly in my view, drew attention to the advertisement-like effect of the interview which was the cause of complaint against Dr. Barthold.

Doubtless paragraph 39 of the Court ’ s judgment cannot be taken in isolation, and in particular in isolation from paragraphs 42, 43, 51, 55 and following.

The issue of commercial advertising was raised only incidentally in the Barthold case, and the Commission and the Court will be called on to rule more directly and comprehensively on the subject.

As of now, however, one cannot ignore the considerable evolution that has occurred, in Europe as well as in North America , within the professional bodies representing the liberal professions in opening themselves up to certain forms of collective advertising about their activities and even to certain forms of individual advertising, in particular so as to indicate practitioners ’ specialities.

Standards of professional conduct are thereby undergoing development and, for members of the liberal professions, it is not possible to divorce assessment of professional conduct from the degree of liberty afforded in relation to advertising, which is what happened in Dr. Barthold ’ s case.

Freedom of expression in its true dimension is the right to receive and to impart information and ideas. Commercial speech is directly connected with that freedom.

The great issues of freedom of information, of a free market in broadcasting, of the use of communication satellites cannot be resolved without taking account of the phenomenon of advertising; for a total prohibition of advertising would amount to a prohibition of private broadcasting, by depriving the latter of its financial backing.

Regulation in this sphere is of course legitimate - an uncontrolled broadcasting system is inconceivable -, but in order to maintain the free flow of information any restriction imposed should answer a "pressing social need" and not mere expediency. Even if it were to be conceded that the State ’ s power to regulate is capable of being more extensive in relation to commercial advertising, in my view it nevertheless remains the case that "commercial speech" is included within the sphere of freedom of expression. Such was the import of a decision by the Commission (Church of Scientology v. Sweden, Decisions and Reports, vol. 16, pp. 72-74); such is the case-law of the Supreme Court of the United States under the First Amendment (Virginia Pharmacy Board, Bates - Bar of Arizona, Central Hudson, etc.), albeit that commercial communications are afforded a different degree of protection to that granted in respect of the press.

In the Barthold case, the submission of the applicant was, in part, that the rule of professional conduct obliging veterinary surgeons to refrain from advertising and publicity was in itself inconsistent with Article 10 (art. 10) (see paragraph 37 of the judgment).

The Court has above all concentrated on examining the principal complaints and, in this context, on analysing whether the interference had a basis in domestic law and was necessary in a democratic society.

The Court has concluded on the facts of the case that there was indeed a breach of Article 10 (art. 10).

The Court could perhaps have pushed its reasoning a little further, even though it may not have been indispensable to do so, and thereby have given a fuller statement of its approach in regard to the links between interference and freedom of expression, between communication of ideas and information, and commercial speech.

To the extent that both these aspects can be considered to be so intimately connected as to be incapable of being dissociated, the Barthold judgment makes a further contribution to the movement that is reflected in legal writings towards freedom of expression, its content and its projection in the world of broadcasting and communications.

[*]  The case is numbered 10/1983/66/101.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.