CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mai 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           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)