JANSSEN proti Německu



AS TO THE ADMISSIBILITY OF

Application No. 21554/93

by Ingrid JANSSEN

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 November 1992

by Ingrid JANSSEN against Germany and registered on 3 March 1993 under

file No. 21554/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1943 in Linz, Austria

and now living in Hamburg. She is represented by Mr. K. Sojka, a

lawyer practising in Hamburg.

The applicant works as a freelance non-medical practitioner

(Heilpraktiker).

On 30 October 1987 the applicant was ordered by the Hamburg

Regional Court (Landgericht) to abstain from advertising in the form

of a newspaper article which had appeared on 11 December 1986 in a

wide-spread newspaper (Bildzeitung).

The article was part of a series called "the great Hamburg non-

medical practitioners, their assets, their successes, their prices".

It was entitled "Ingrid Janssen helps - with plants and talks". The

article shows two photos of the applicant, dressed in a white coat.

On one of the photos she is measuring the blood pressure of a patient.

The article mentions the case of Mrs. M. who alleged to have been cured

by the applicant of gout and then speaks of the applicant's therapies

which consist inter alia of giving injections with a natural product

called procaine that allegedly positively influences the body's bio-

energetic tensions. It also stresses that the applicant devotes a lot

of time to each patient. The price for a consultation is equally

mentioned.

The order was given at the request of the Hamburg Association of

Non-medical Practitioners.

According to the findings of the court the publication in

question had the effect of an advertisement as it not only informed

about non-medical practitioners' methods but spoke of new therapies in

comparison to unsuccessful therapies of other medical professions and

informed about prices and healing successes. The public was thereby

not in general informed about methods of non-medical practitioners but

rather the activity of the applicant was praised as being successful

and of good value. Therefore the article had to be considered as an

advertisement. As an advertisement it ran counter to the professional

standards of non-medical practitioners. The fact that the applicant

was not a member of the plaintiff organisation was considered to be

irrelevant. The applicant's own responsibility was seen in the fact

that she had not seen to it that the article was phrased in a manner

avoiding personal publicity.

The article in question not only violated the professional

guidelines of non-medical practitioners but also violated Section 1 in

conjunction with Section 11 of the Act on Medical Publicity (Gesetz

über die Werbung im Heilwesen-HWG) and Section 1 of the Unfair

Competition Act (UWG).

The applicant's appeal was rejected by the Hanseatic Court of

Appeal (Oberlandesgericht) on 21 January 1988.

In the operative part of the judgment the appellate court

reproduced a complete copy of the newspaper article in question and

then listed the acts which it considered to constitute illicit

advertisement namely having her name mentioned in connection with the

formulations:

- "the great Hamburg non-medical practitioners, their assets,

their successes, their prices";

- statements on alleged successful treatment of specific illnesses,

on medicaments or methods and on case histories relating to

successfully treated patients;

- photos showing her practising in professional dress;

The court considered it to be evident that the newspaper article

in question had a publicity effect even if it also was of an

informative character. Furthermore the applicant was considered to be

answerable to the reproach of illicit advertisement as she had provided

the necessary information to the newspaper without seeing to it that

the article was drafted in an unobjectionable form.

She had thereby violated professional conduct rules. The court

noted in this context that several professional organisations

representing non-medical practitioners had agreed upon a code of

conduct (Berufsordnung) banning professional advertising. Although

these rules were considered to be private statutes they expressed the

traditional and prevailing practices of the profession.

Consequently the applicant had violated the rule of the

profession not to advertise.

In addition she had violated Section 1 of the Unfair Competition

Act. The ban on advertisement was in the public interest as sick

people were particularly vulnerable in respect of misleading publicity.

The ban did not therefore violate constitutional rights as it was

justified to limit freedom of expression in the interest of the

protection of health.

The applicant then lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht) on 9 September 1992. It is stated in the

decision that the reasons given by the Regional Court were insufficient

(fehlerhaft) inter alia because the court had not considered the

principle of proportionality. It was however unlikely that the result

of the civil court proceedings would have been different if that

principle had been taken into account. In fact the applicant's

legitimate interest in informing the public about the performance of

non-medical practitioners could have been reached also without

violating Section 1 of the HWG. The applicant could have foreseen that

the use of photos showing her in a white coat taking care of her

patients was not absolutely necessary and could only violate Section 1

of the UWG.

In any event the refusal to admit the applicant's case for a

decision on the merits did not cause her any relevant disadvantages

(aussergewöhnliche Nachteile). The applicant herself had submitted

that the judgment complained of in practice had no negative effects as

there was no question of having the incriminated newspaper article

published again. Therefore the applicants concrete interest only

related to the question of the costs of the proceedings. This

unimportant interest did not however justify a decision on the merits

by the Federal Constitutional Court.

COMPLAINTS

The applicant refers to the Barthold judgment and considers that

the Regional Court's decision violates her rights under Articles 6, 7,

8, 9, 10 and 11 of the Convention as well as Article 1 of Protocol No.

1 to the Convention.

THE LAW

The applicant mainly complains of an interference with her right

to impart information as guaranteed under Article 10 (Art. 10) of the

Convention.

Article 10 para. 1 (Art. 10-1) provides:

"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 shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises."

However, interference with this right is compatible with the

Convention when it fulfils the requirements of para. 2 of Article 10

(Art. 10-2) which provides:

"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 Commission first considers that Article 10 (Art. 10) is

applicable in the present case as the restriction imposed on the

applicant relates at least in part to the expression of "opinions" and

the imparting of "information" (cf. Eur. Court H.R., Markt Intern

Verlag GmbH and Klaus Beermann judgment of 20 November 1989, Series A

no. 165, p. 17, paras 25 to 26).

As to the requirements set out in para. 2 the interference had

its legal basis in Section 1 of the Unfair Competition Act, the purpose

of which is the protection of the rights of businessmen against unfair

practices by competitors and also the protection of the rights of

consumers. This is a legitimate aim under Article 10 para. 2

(Art. 10-2) for the protection of the rights of others in a democratic

society (see No. 7805/77, Dec. 5.5.79, D.R. 16 p. 68 [73]).

It cannot be found that the legislative provision in question was

not adequately accessible and formulated with sufficient precision (cf.

the above-mentioned Markt Intern judgment, pp. 18-19, paras. 28-30).

Relying on the judgment in the Barthold case (cf. Eur. Court

H.R., judgment of 25 March 1985, Series A no. 90) the applicant mainly

contests the "necessity" of the interference.

However, the present case is distinguishable from the Barthold

case in that, contrary to that case the gist of the article here in

question was not a specific information which the public had an

interest in being familiar with. While in the Barthold case

information was in question that related to objective facts, namely the

absence of a nocturnal veterinary service and efforts in the profession

to establish regulations concerning such emergency service, the present

article relates only to subjective appreciations of a patient who

believes she was cured by the applicant and of the applicant herself

regarding the effectiveness of a natural product used by her in

connection with the treatment of her patients. The incriminated article

thus exclusively related to the applicant's personal way of exercising

her profession, in sum the only information it conveyed is that of the

applicant being a recommendable non-medical practitioner. There is no

particular public interest in such information being made available.

Having regard to the States' margin of appreciation which is

particularly essential in the complex and fluctuating area of unfair

competition and advertising (cf. Eur. Court H.R., Casado-Coca judgment

of 24 February 1994, Series A No. 285, para. 50) the Commission

concludes that the measure complained of could be considered "necessary

in a democratic society".

Insofar as the applicant has likewise alleged violations of

Articles 6 to 9 and 11 (Art. 6, 7, 8, 9, 11) of the Convention, she has

not substantiated her complaints and the facts as submitted do not

disclose any appearance of a violation of these Articles.

It follows that the application has to be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)