DISSENTING OPINION OF JUDGES WALSH, MACDONALD AND WILDHABER

This is an important case in which admittedly the requirements of protecting the reputation and rights of others (of potential commercial competitors) must be weighed against the applicant ’ s freedom to distribute his circular of 25 September 1984 along with the appended thirteen newspaper articles.

In our opinion, the majority judgment makes it appear as though this case involves simply a choice between two conflicting principles of equal weight. It relies too heavily on the findings of fact by the national courts. In so doing, it gives an excessive significance to the doctrine of the margin of appreciation.

In our view, freedom of expression is the guiding principle in the instant case. Exceptions to this fundamental principle must be interpreted narrowly (see, mutatis mutandis, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 41, para . 65). The findings of fact by the national courts must be assessed with the proper respect due to them, but without excessive deference. It is crucial that the margin of appreciation which is left to national legislatures and courts must remain subject to an effective European supervision.

In the instant case, the applicant had been harshly attacked by his employer in a press release in which his professional abilities had been seriously questioned and he himself had been held responsible for the collapse of the Deutsche Depeschendienst GmbH. Shortly afterwards his dispute with the ddp culminated in his being dismissed without notice from all his duties. He accordingly had an obvious and pressing interest in trying to protect his impugned reputation without delay, especially as he was seeking a new job in the same sector and had to wait almost two months for his right to reply to be recognised and another month for his reply to be published (see paragraphs 12-13 of the judgment). There was a parallel public interest to learn whether the applicant would defend himself against his former employer.

In this situation, the applicant sent his circular of 25 September 1984. At the time he sent it, some six weeks had already elapsed since the ddp had issued its press release of 16 August 1984 (see paragraphs 12 and 14 of the judgment). He still did not know whether the courts would eventually grant him a right of reply. Given this situation, there was nothing extreme or improper in the circular at issue. On the contrary, he merely approved in a few lines the substance of thirteen articles from newspapers with a large circulation, which were already in the public domain. Subsequently, the Düsseldorf Court of Appeal ruled that the applicant should desist from any further such mailings, on pain of a fine, and that he would have to pay compensation for all actual or potential damage suffered by the ddp as a consequence of his action (see paragraph 17 of the judgment). In effect, the German Unfair Competition Act was interpreted so as to make unlawful the distribution of widely circulated newspaper articles, at a time when the applicant had no way to re-establish his impugned reputation and did not know whether any such way would be available to him in the foreseeable future. Thus the Düsseldorf Court of Appeal accepted that he had acted, among other reasons, in order to correct assertions about him that were "possibly false" (see paragraph 17 of the judgment).

Admittedly, in the eyes of the national courts, the injunction in issue was founded on the fact that in addition to defending himself the applicant had above all sought to "disparage" his former employer - "as a competitor" - to the recipients of the circular (see paragraph 17 of the judgment). The recipients of the circular, however, were among those who had also received the ddp ’ s press release of 16 August 1984, in which the applicant had been attacked and to which he had finally secured the right to reply on 11 October 1984 (see paragraphs 12-13 of the judgment). The motives which prompted the applicant ’ s action - protecting his reputation and securing his future career - appear both legitimate and intertwined. They are so intertwined, in fact, that he could not be expected to justify himself without making reference to both his past and his future professional career. Moreover, as we have stressed, he did not do so in an extreme or improper fashion, since he confined himself to sending out newspaper cuttings, to which he added only a few comments. To put it succinctly, he distributed newspaper articles which were already in the public domain, and added that they gave, on the whole, a fair picture.

We fail to see how it could have been proportionate to prevent him from doing this. The competitive element cannot be regarded as having played a preponderant role in the particular circumstances of the case. To accept in this case a preponderance of the competitive element amounts to reducing the principle of freedom of expression to the level of an exception and to elevating the Unfair Competition Act to the status of a rule. We cannot agree that this constitutes the proper way of exercising a European supervision.

[*]  Note by the Registrar.  The case is numbered 7/1993/402/480.  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 291-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.