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You are here: BAILII >> Databases >> European Court of Human Rights >> JACUBOWSKI v. GERMANY - 15088/89 [1994] ECHR 21 (23 June 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/21.html
Cite as: (1995) 19 EHRR 64, [1994] ECHR 21, 19 EHRR 64
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In the case of Jacubowski v. Germany*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr B. Walsh,
Mr R. Macdonald,
Mr R. Pekkanen,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 November 1993 and
26 May 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* 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.
_______________
PROCEDURE
1. The case was referred to the Court by the Government of the
Federal Republic of Germany ("the Government") and by the European
Commission of Human Rights ("the Commission") on 19 February and
12 March 1993, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 15088/89) against
Germany lodged with the Commission under Article 25 (art. 25) by a
German national, Mr Manfred Jacubowski, on 11 April 1989.
The Government's application referred to Articles 32 and 48
(art. 32, art. 48); the Commission's request referred to Articles 44
and 48 (art. 44, art. 48) and to the declaration whereby Germany
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the application and of the request was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 10
(art. 10) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30). The lawyer was given leave by the
President to use the German language (Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 27 February 1993, in the presence of
the Registrar, Mr Bernhardt, the Vice-President, drew by lot the names
of the other seven members, namely Mr B. Walsh, Mr R. Macdonald,
Mr R. Pekkanen, Mr M.A. Lopes Rocha, Mr L. Wildhaber,
Mr G. Mifsud Bonnici and Mr D. Gotchev (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Deputy Registrar, consulted the Agent of the
Government, the applicant's lawyer and the Delegate of the Commission
on the organisation of the proceedings (Rules 37 para. 1 and 38).
Pursuant to the order made in consequence, the Registrar received the
Government's memorial on 16 July 1993 and the applicant's memorial on
19 July. On 30 July the Deputy Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing.
5. On 14 September 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President, who had also
given the Government's representatives leave to address the Court in
German (Rule 27 para. 2), the hearing took place in public in the Human
Rights Building, Strasbourg, on 22 November 1993. The Court had held
a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr A. von Mühlendahl, Ministerialrat,
Federal Ministry of Justice, Adviser;
(b) for the Commission
Mr J.A. Frowein, Delegate;
(c) for the applicant
Mr W. Meilicke, Rechtsanwalt, Counsel,
Mr T. Heidel, Rechtsanwalt, Adviser.
The Court heard addresses by Mr Meyer-Ladewig,
Mr von Mühlendahl, Mr Frowein and Mr Meilicke, and also replies to its
questions.
AS TO THE FACTS
7. Mr Manfred Jacubowski lives in Bonn and is a journalist by
profession. At the material time he was working as editor-in-chief of
a news agency run by a commercial company, the Deutsche Depeschendienst
GmbH, of which he was a founder member and manager. This company filed
a petition in bankruptcy (Eröffnung des Konkursverfahrens) on
31 March 1983. A new company, the Deutsche Depeschendienst AG ("the
ddp"), was created subsequently, and Mr Jacubowski became its sole
director (Vorstand) and editor-in-chief on 3 May 1983.
8. Shortly afterwards, he instituted two different sets of
proceedings. In the first (A) he sought to challenge his dismissal and
in the second (B) he claimed the right to reply to a press release
issued by his employer. At almost the same time, he became involved
in a third set of proceedings (C) brought against him under the Unfair
Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb
- "the 1909 Act").
A. The applicant's dismissal
9. For reasons connected with the applicant's financial
management, the ddp's supervisory board (Aufsichtsrat) dismissed him
without notice from all his duties on 17 July 1984. On 25 August it
sent him another letter of dismissal on the ground that he had
allegedly communicated inside information to third persons.
Mr Jacubowski challenged the validity of the latter dismissal, which
was renewed on 12 October. A further dismissal letter was sent to him
on 28 October, after he had distributed a circular letter and newspaper
cuttings among fellow professionals on 25 September (see paragraph 14
below). A final dismissal notice, based on new grounds, was sent to
him on 12 February 1985.
10. At the end of legal proceedings instituted by the applicant,
the Cologne Court of Appeal (Oberlandesgericht) held on 11 October 1988
that he had been validly dismissed on 28 October 1984.
According to the court, the distribution of the circular and
cuttings was to be regarded as such a serious breach of Mr Jacubowski's
duty of loyalty that it was not possible for the employer to continue
his contract, nor could it reasonably be expected. By sending press
articles to a large number of influential professionals and endorsing
in the circular their objectively unfavourable statements about the
ddp's competence and business situation, Mr Jacubowski had knowingly
run the risk of causing the company considerable prejudice; such
behaviour on the part of a leading employee was unacceptable and
therefore not covered by the constitutional right to freedom of
expression.
Furthermore, it could not be inferred from the circular that
its main aim was to defend the applicant's reputation and honour; it
contained neither any reference to the ddp's allegations nor any
arguments in Mr Jacubowski's defence. The circular's last paragraph
clearly showed that the sole purpose of the mailing had been to
disseminate adverse comments on the applicant's former employer and to
establish contact with the addressees.
11. Mr Jacubowski challenged this judgment in the Federal Court of
Justice (Bundesgerichtshof) and the Federal Constitutional Court
(Bundesverfassungsgericht), but on 26 June and 25 October 1989
respectively those courts declined to accept for adjudication his
applications on the ground that they had no prospects of success.
B. The applicant's reply to his employer's press release
12. In the meantime, on 16 August 1984, the agency had published
a press release concerning its own reorganisation. In this it also
criticised the applicant's management in the following terms:
"... after the private limited company ... had filed a
petition in bankruptcy on 31 March 1983, the public limited
company D. - again under the management of Manfred
Jacubowski - started up on 20 April 1983 with a capital of
one million DM. Jacubowski's unchanged business methods and
his inappropriate behaviour to clients, together with the lack
of any efficient, reliable editorial management meant that no
advantage was taken of the opportunity to make a fresh start,
and indeed they led to a loss of clients. Until this spring
Jacubowski misled the supervisory board about vital aspects of
the developments. In particular, liabilities incurred in the
private company's period of existence were transferred to the
public company, and this put the D. agency into financial
difficulties again. Only the timely intervention of the
former finance and accounting director, K., the current
director, prevented more serious harm being done, so that
today D. is once again on a sound financial footing. On
17 July - the date of the general meeting - Jacubowski was
dismissed without notice on account of his business
incompetence ... K. was appointed sole director."
13. On 29 August and 4 September 1984 the applicant requested the
ddp to publish his reply (Gegendarstellung) to the press release, but
without success. He then sought an interim injunction (einstweilige
Verfügung) from the Bonn Regional Court (Landgericht), but this was
refused on 17 September 1984, on the ground that the proposed reply was
not limited to answering the allegations of fact in the press release
(gegenteilige Tatsachenbehauptung) but gave a completely new version
of the sequence of events (Auflistung), which had not been an issue in
the ddp's press release.
On 11 October the Cologne Court of Appeal reversed
the Regional Court's judgment and ordered the agency to accede to
Mr Jacubowski's request, which it did a month later. In the reply then
published the applicant answered in detail all the main accusations
contained in the ddp's press release.
C. The proceedings under the Unfair Competition Act
14. In the meantime, on 25 September 1984, Mr Jacubowski had sent
thirteen articles from newspapers with large circulations to forty
newspaper publishers and newspaper, radio and television journalists
who, as clients of the ddp, had received the press release of 16 August
(see paragraph 12 above). These articles gave critical accounts of his
dismissal, the circumstances surrounding it and the ddp's activities
in general. They reported in particular that the ddp's financial
position had worsened again since the bankruptcy in April 1983 (see
paragraph 7 above) and that some of its clients were preparing to
dispense with its services, mainly because of their poor standard and
the lack of certain technical facilities.
He had appended a circular letter that read as follows:
"The enclosed selection - which is inevitably incomplete -
of articles on the Jacubowski v. D. case will undoubtedly
throw light on certain matters that are still obscure, even
though you may already be familiar with one or other of the
accounts of the facts. Some of the facts are admittedly
reported inaccurately, but they scarcely alter the picture as
a whole. The pending court proceedings that members of D.'s
staff affected by current developments at the agency and I
have brought will ensure that all the details finally become
clear.
I should be glad to be able to meet you in person before too
long, in order to discuss not only the past but also future
developments in the German 'news market'. I will ask for an
appointment in due course.
15. Shortly afterwards, on 11 March 1985, the applicant set up a
"public-relations" agency.
16. In the meantime the E. company, which had acquired 25% of the
ddp's capital, had applied for a restraining injunction (Unterlassung)
against Mr Jacubowski. On 29 January 1986 the Düsseldorf Regional
Court refused the application on the ground that E. had no legal
interest (rechtliches Interesse).
17. On 11 December 1986, on an appeal by E., joined (Eintritt in
den Rechtsstreit) by the agency, the Düsseldorf Court of Appeal refused
to grant an injunction prohibiting the applicant from systematically
criticising the ddp but ordered that he should desist from any further
such mailings, on pain of a fine; it went on to hold that he would have
to "compensate the [E. company] for all the damage that the acts [in
question] ha[d] caused and [would] cause the [ddp]". The judgment was
based on section 1 of the 1909 Act, which provides: "Any person who,
in the course of business commits, for purposes of competition, acts
contrary to accepted moral standards may be enjoined from further
engaging in those acts and held liable for damages."
The court held that in his circular the respondent had repeated
in his own name the allegations made in the attached articles.
Admittedly, he had sought to correct assertions made about him in the
press release that were possibly false but he had acted above all for
purposes of competition in the course of business.
The court said, inter alia:
"... the respondent sent his circular of 25 September 1984
for purposes of competition in the course of business.
An action is said to be for purposes of competition where it
is on the face of it apt to promote one person's sales to the
detriment of another's and where it is carried out with a
corresponding intention, although that intention need not be
the only or the essential motive for the action (settled
case-law, see Federal Court of Justice in GRUR 1952,
p. 410 - Constanze I; Baumbach-Hefermehl, Wettbewerbsrecht,
14th edition, intro. to Unfair Competition Act, marginal notes
209 et seq., with further references).
Remarks which, according to the witness Leisner, the
respondent made several times show that even before sending
out the circular the latter had planned to set up his own
news agency after he left the employ of the [ddp]. The
distribution of the circular referring to the enclosed adverse
newspaper reports on, inter alia, the [ddp]'s activities as a
news agency to current clients of the [ddp] and/or potential
clients of both the [ddp] and the news agency that the
respondent proposed to set up was apt to enhance the
competitive position of the respondent's company and impair
that of the [ddp]. Admittedly, the respondent's company did
not then exist. However, for it to be held that there is a
competitive relationship, it is sufficient that traders have,
or at least will in the future have, the same potential
clientele. This was the case as regards the respondent's
company and the [ddp] ...
Behind the respondent's conduct there was furthermore a ...
competitive intention.
Experience shows that the fact that activities are
objectively apt to enhance one's own competitive position at
the expense of another's is not the only basis for presuming
a competitive intention ...
In the present case such an intention is also apparent from
the other facts that emerged during the proceedings.
According to what he told the witness Leisner, the respondent
had already been planning for a long time to set up his own
agency in the event of his leaving the [ddp]'s service. In
the middle of July 1984 the [ddp] had removed him from the
post of director and in the middle of August [it] had
terminated his contract of employment. The circular and
newspaper cuttings were sent out about a month later to
selected addressees, including - and this is not disputed -
important clients of the [ddp]. A few months later the
respondent's new agency was set up. This chronological
sequence of events is a further indication of the respondent's
intention to lower the [ddp] in the esteem of potential
clients of both parties and thereby make it easier for his own
agency to gain a foothold in the market in preparation for
competition with the [ddp].
The last paragraph of the circular likewise makes the
competitive intention clear. It shows that the respondent
intended to provoke discussion not only with a view to
correcting assertions concerning himself that were possibly
false, but also, at the very least, in order to promote his
future activities as a competitor of the [ddp]. It is not
apparent what else the respondent could have meant when he
wrote that he wished to discuss 'not only the past but also
future developments in the German "news market"'. By taking
up these unfavourable comments on the [ddp] and distributing
them anew as his own statements and assessments, he
unnecessarily handicapped the [ddp] as a competitor. In this
connection it does not matter whether the unfavourable factual
statements concerning the [ddp]'s activities were accurate and
whether they justified the unfavourable assessments
accompanying them. This is because even true statements may
only be used to disparage a competitor where the person making
them has sufficient reason to link his own competitive
position with disparagement of the competitor and provided
that the criticism does not in nature or degree exceed what is
necessary (Federal Court of Justice in GRUR 1968, pp. 262 and
265 - Fälschung). It does not appear that there was any such
reason to disparage the [ddp] by taking up the unfavourable
comments on its activities in the Horizont article."
In short, Mr Jacubowski had needlessly handicapped (behinderte
unnötig) a competitor and accordingly infringed section 1 of the
1909 Act.
18. On 26 November 1987 the Federal Court of Justice declined to
accept for adjudication an appeal on points of law (Revision) by the
applicant on the ground that it had no prospects of success.
19. Thereupon Mr Jacubowski applied to the Federal Constitutional
Court, complaining in particular of an infringement of freedom of
expression (Article 5 para. 1, first sentence, of the Basic Law). On
4 October 1988 the Federal Constitutional Court declined to accept the
complaint for adjudication on the ground that it was unfounded.
It noted, firstly, that the prohibition in issue related solely
to the applicant's chosen method of circulating his information. The
information was, moreover, of a business nature, but this did not mean
that it ceased to be an opinion whose expression was protected by
Article 5 para. 1, first sentence, of the Basic Law. This provision
therefore had to be weighed against section 1 of the 1909 Act, on which
the prohibition had been founded.
The court went on:
"In order for it to be determined how [freedom of expression
and fair competition] are to be related to each other in the
case of damaging comment by a competitor, the following points
are decisive, having regard to earlier decisions of the
Constitutional Court in cases involving a call for a boycott
(see Constitutional Court Decisions [vol.] 62, 230 at 244 et
seq., with further references).
In the first place, the motives of the person concerned and,
linked to them, the aim and purpose of the comment are
crucial. If the comment is motivated not by personal
interests of an economic nature, but by concern for the
political, economic, social or cultural interests of the
community, if it serves to influence public opinion, the
appeal will probably qualify for the protection of Article 5
para. 1 of the Basic Law, even if private and, more
particularly, economic interests are adversely affected as a
result. Conversely, the importance of protecting the latter
interests is the greater, the less the comment is a
contribution to public debate on a major issue of public
concern and the more it is immediately directed against those
interests in the course of business and in pursuit of a
self-serving goal (see Constitutional Court Decisions [vol.]
66, 116 at 139) such as improving one's own competitive
position ...
...
In the light of these facts, the distribution of the
applicant's circular can hardly be regarded as an attempt to
influence public opinion. Rather it was designed almost
exclusively to promote his private business interests and to
secure or improve his competitive position in the news market.
It follows ... that the prejudice caused to the complainants
by the distribution of the circular was disproportionate to
the applicant's aim, stated in it, of clarifying his
relationship with the ddp and 'current developments at the
agency'. In principle, freedom of expression takes precedence
over rights (Rechtsgüter) protected by ordinary laws in so far
as the statement is part of the ongoing discussion of
questions of public importance which is absolutely fundamental
to a free democratic system. This condition is not satisfied
where the statement is made to ensure that certain business
interests prevail over others in the context of business
competition. The fact that an interest is made to prevail by
means which are in principle protected under Article 5
para. 1 of the Basic Law cannot therefore justify
subordinating to it the other interest, which is in turn
entitled to the protection of an ordinary law that places
restrictions on freedom of expression, in this case section 1
of the Unfair Competition Act (see Constitutional Court
Decisions [vol.] 62, 230 at 247 et seq.). It follows that the
finding by the Court of Appeal that the applicant's
distribution of the circular was contrary to accepted moral
standards is not incompatible with Article 5 para. 1 of the
Basic Law."
The Constitutional Court added that the fact that the impugned
circular followed a press release directed against him which had been
issued by the ddp (see paragraph 12 above) did not invalidate this
conclusion, since in order to claim the protection of the Constitution,
his response would have had to be intended to influence public opinion,
which it was not.
20. On 30 November 1988 the Düsseldorf Regional Court dismissed a
claim for damages brought by the ddp in reliance on the Court of
Appeal's judgment of 11 December 1986 (see paragraph 17 above). It
held that the ddp had insufficiently substantiated its claim and had
failed to prove any causal link between the alleged damage and the
distribution of Mr Jacubowski's circular.
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Jacubowski applied to the Commission on 11 April 1989.
Relying on Article 10 (art. 10) of the Convention, he complained of a
breach of his right to freedom of expression.
22. The Commission declared the application (no. 15088/89)
admissible on 3 December 1991. In its report of 7 January 1993 (made
under Article 31) (art. 31), it expressed the unanimous opinion that
there had been a violation of Article 10 (art. 10). The full text of
the Commission's opinion is reproduced as an annex to this judgment*.
_______________
* 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.
_______________
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
23. The applicant complained of the court order of
11 December 1986, later confirmed on 26 November 1987 by the Federal
Court of Justice, prohibiting him from continuing to distribute his
circular of 25 September 1984 (see paragraphs 17-18 above). He alleged
a violation of Article 10 (art. 10), which provides:
"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. This Article
(art. 10) shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
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 order of 11 December 1986 had, he said, prevented further
distribution of his reply of 25 September 1984 to a press release in
which his former employer had openly put his professional abilities in
question. He had tried unsuccessfully to have his reply published by
the ddp itself, by applying firstly to the agency and then to the Bonn
Regional Court (see paragraphs 12-13 above). These attempts having
failed, he had had to resort to other means, without awaiting the
judgment of the Cologne Court of Appeal, since his reputation was at
stake. In any case, there had been nothing extreme about the circular
in issue, which had merely approved in a few lines the substance of the
attached articles from newspapers that had already been widely
distributed.
The Commission shared this view for the most part.
24. The Government challenged it. In issuing an injunction
consequent upon an act of unfair competition, the Düsseldorf Court of
Appeal had done no more than exercise a discretion in commercial
matters, as it was empowered to do under the doctrine of the margin of
appreciation. Although it could not be regarded as the only possible
one, its decision appeared at the very least defensible in the light
of the wording of the circular of 25 September 1984, in which
Mr Jacubowski had first of all broadly endorsed the criticisms of the
ddp in the press cuttings he reproduced and then, in the last
paragraph, expressed the intention, thinly disguised, of establishing
business relations between the recipients of the circular and the new
agency he was preparing to set up. Rather than defend himself, he had
therefore clearly denigrated a competitor the better to be able to
poach clients, and this was, moreover, shown by the appreciable
difference in content between the circular and the reply eventually
published after the judgment of 11 October 1984 (see paragraph 13
above).
In addition, the national courts had shown moderation in going
no further than prohibiting any redistribution of the circular of
25 September 1984; the applicant still had complete freedom to voice
his opinions in any other way.
25. The Court notes that the impugned measure was, without a doubt,
an interference with Mr Jacubowski's exercise of his freedom of
expression. The fact that, in a given case, that freedom is exercised
other than in the discussion of matters of public interest does not
deprive it of the protection of Article 10 (art. 10) (see, mutatis
mutandis, the Casado Coca v. Spain judgment of 24 February 1994,
Series A no. 285-A, p. 16, para. 35).
The interference was "prescribed by law" and pursued a
legitimate aim under the Convention, namely "the protection of the
reputation or rights of others" (see, mutatis mutandis, the Barthold
v. Germany judgment of 25 March 1985, Series A no. 90, pp. 21-23,
paras. 44-51, and the markt intern Verlag GmbH and Klaus Beermann
v. Germany judgment of 20 November 1989, Series A no. 165, pp. 17-19,
paras. 27-31). It consequently remains to be ascertained whether the
interference can be regarded as having been "necessary in a democratic
society".
26. The Court has consistently held that a certain margin of
appreciation is to be left to the Contracting States in assessing
whether and to what extent an interference is necessary, but this
margin goes hand in hand with European supervision covering both the
legislation and the decisions applying it, even those given by an
independent court.
Such a margin of appreciation appears essential in commercial
matters, in particular in an area as complex and fluctuating as that
of unfair competition. The Court must confine its review to the
question whether the measures taken at national level are justifiable
in principle and proportionate (see the markt intern Verlag GmbH and
Klaus Beermann judgment previously cited, pp. 19-20, para. 33).
27. In the instant case the requirements of protecting the
reputation and rights of others must be weighed against the applicant's
freedom to distribute his circular and the newspaper cuttings.
All three of the national courts that considered the merits of
Mr Jacubowski's course of action were unanimous in regarding it as an
act of unfair competition in breach of "accepted moral standards", as
in their view it had been mainly designed to draw the ddp's clients
away to the new press agency that he set up shortly afterwards. Their
judgments were based principally on the circular's wording, especially
its last paragraph, in which, so they held, the sender clearly
expressed his wish to establish personal business contacts with the
addressees. The domestic courts further relied on testimony that, even
before sending his circular, the applicant had planned to found his own
news agency (see paragraphs 10, 15, 17 and 19 above). The evidence put
before the Court does not undermine that conclusion.
28. All three domestic courts took into account the fact that
Mr Jacubowski had been personally attacked in a press release issued
by his former employer. However, in view of the aforementioned
circumstances, they attached less importance to it than to what they
regarded as the cardinal feature, namely the essentially competitive
purpose of the exercise. In the reply he eventually published
Mr Jacubowski responded in detail to the main accusations contained in
the ddp's press release; but the content of his reply was substantially
different from that of his circular (see paragraph 13 above).
29. Lastly, it should be emphasised that the impugned court order
went no further than to prohibit distribution of the circular; the
Düsseldorf Court of Appeal refused the ddp's application for an
injunction prohibiting Mr Jacubowski from systematically criticising
the ddp (see paragraph 17 above). He thus retained the right to voice
his opinions and to defend himself by any other means. The
interference complained of therefore cannot be regarded as
disproportionate.
30. Accordingly, it cannot be said that the German courts
overstepped the margin of appreciation left to national authorities and
no breach of Article 10 (art. 10) has been made out.
FOR THESE REASONS, THE COURT
Holds by six votes to three that there has been no breach of
Article 10 (art. 10).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 June 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the joint
dissenting opinion of Mr Walsh, Mr Macdonald and Mr Wildhaber is
annexed to this judgment.
Initialled: R.R.
Initialled: H.P.
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.