Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 15088/89
by Manfred JACUBOWSKI
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
3 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs.G. H. THUNE
SirBasil 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 11 April 1989 by
Manfred JACUBOWSKI against the Federal Republic of Germany and
registered on 7 June 1989 under file No. 15088/89;
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 facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1933, is a German national and resident
in Bonn. He is a journalist by profession. Before the Commission he
is represented by Mr. W. Meilicke, a lawyer practising in Bonn.
The applicant was co-founder, partner and manager of a private
company operating a news agency, which went bankrupt in March 1983.
Subsequently, a successor news agency D., operated by a limited
company, was founded. On 3 May 1983 the applicant was appointed, for
a period of five years, sole managing director and employed as chief
editor of this news agency.
On 17 July 1984 the applicant was dismissed without notice. He
instituted court proceedings before the Bonn Regional Court
(Landgericht) challenging his dismissal. Later the news agency D.
repeated the applicant's dismissal on several occasions invoking other
reasons.
On 16 August 1984 his employer D., in its news network, published
a press release concerning its reorganisation of personnel, which also
commented upon the applicant's qualifications and his performance as
a journalist and managing director. The press release, so far as
relevant, reads as follows:
<German>
"<D.> stellt behauptungen richtig
bonn, 16 August 84 <D.> - die verwaltung der <D.> hat in
branchendiensten wiedergegebene darstellungen ueber vorgaenge bei
der personellen neugliederung der unternehmens- und
redaktionsfuehrung als unzutreffend zurueckgewiesen. im einzelnen
nahm <D.> zu diesen versionen wie folgt stellung:
1. nachdem die ... gmbh am 31. maerz den konkurs anmeldete,
startete the <D.> ag - weiterhin unter der leitung von manfred
jacubowski - am 20. april 1983 mit einem grundkapital von einer
million dm. jacubowskis unveraendertes geschaeftsgebaren und
unangemessenes verhalten im umgang mit kunden einerseits sowie
das fehlen einer zielstrebigen und verlaesslichen
redaktionsfuehrung andererseits verhinderten, dass die chance des
neubeginns genutzt wurde, und hatten vielmehr verluste von kunden
zur folge. ueber diese entwicklung wurde der damalige
aufsichtsrat in gravierenden punkten bis in dieses fruehjahr
hinein von jacubowski falsch informiert. insbesondere wurden
verbindlichkeiten aus der gmbh-zeit der ag angelastet und damit
<D.> erneut in finanzielle schwierigkeiten manoevriert. nur durch
das rechtzeitige eingreifen des damaligen leiters des finanz- und
rechnungswesens, des heutigen vorstands <K.>, konnte groesserer
schaden verhindert werden, so dass <D.> heute wieder
wirtschaftlich auf gesunden fuessen steht. wegen kaufmaennischen
versagens und besonders wegen uebertragung von verbindlichkeiten
der gmbh auf die ag wurde jacubowski zum 17. juli - dem tag der
hauptversammlung - fristlos gekuendigt. zum neuen alleinvorstand
wurde <K.> ernannt.
2. der neugewaehlte aufsichtsrat bot jacubowski einen neuen
vertrag als chefredakteur an. gleichzeitig beschlossen
aufsichtsrat und vorstand die erweiterung der chefredaktion.
jacubowski lehnte die taetigkeit in diesem gremium nach
eingeraeumter bedenkzeit mit der begruendung ab, er bestehe auf
einhaltung seines frueheren vertrages. ..."
<English translation>
"<D.> puts allegations right
Bonn, 16 August 84 <D.> - The administration of <D.> rejected
statements made in several bulletins aimed at specialised sectors
about events in the course of the reorganisation of personnel in
the management of the firm and the editor's office. In particular
<D.> commented as follows:
1. After the ... private company declared itself bankrupt on
31 March 1983, the <D.> limited company started - still under the
management of Manfred Jacubowski - with a capital stock of one
million DM. The unchanged business policy of Jacubowski and his
inappropriate attitude towards clients on the one hand, and the
lack of an efficient and reliable editorial management on the
other hand, prevented the chance of a new start from being used,
and moreover resulted in the loss of clients. Until this spring
Jacubowski, in important matters, wrongly informed the managing
board. In particular, the limited company was charged with debts,
originating from the period of the private company, and thus <D.>
was again manoeuvred into financial difficulties. Only through
the timely intervention of the then Head of Finance and
Accounting, the present Managing Director <K.>, more serious
damage could be prevented with the result that <D.> has today
again a good financial foundation. Having regard to his failure
as a businessman and in particular the transfer of debts from the
private company to the limited company, Jacubowski was dismissed
without notice as from 17 July - the date of the general meeting.
<K.> was appointed new managing director.
2. The newly appointed supervisory board offered Jacubowski a new
contract as chief editor. At the same time the supervisory board
and the managing director decided to enlarge the editorial
management. Jacubowski refused to work in such a group after time
for reflection on the ground that he insisted on his previous
contract. ..."
On 17 September 1984 the Bonn Regional Court dismissed the
applicant's request for a preliminary injunction (einstweilige Ver-
fügung) concerning his claim of a right to reply (Gegendarstellung) to
the above press release.
On 25 September 1984 the applicant addressed a circular letter
to a number of leading newspaper and radio journalists known to him,
including clients of the news agency D. The letter was phrased in the
following terms:
<German>
"Die beigefügte - wenn auch zwangsläufig nicht vollständige -
Auswahl von Berichten über die Sache Jacubowski ./. <D.> kann
sicher einiges aufhellen, das noch im dunkeln liegt, auch wenn
Ihnen die eine oder andere Schilderung schon bekannt sein sollte.
Dies gilt trotz manchmal unzutreffender 'facts', die das
Gesamtbild allerdings kaum verändern. Die noch laufenden
Gerichtsverfahren, die von der gegenwärtigen <D.>-Entwicklung
betroffene Mitarbeiter und ich einleiteten, werden aber auch in
Details für endgültige Klarheit sorgen.
Ich würde mich freuen, wenn sich schon bald die Gelegenheit für
ein persönliches Gespräch bieten würde, um nicht nur die
Vergangenheit, sondern auch die künftige Entwicklung am deutschen
'Nachrichtenmarkt' zu erörtern. Um einen Termin dafür werde ich
mich rechtzeitig bemühen."
<English translation>
"The enclosed selection of articles concerning the case of
Jacubowski v. D. which is necessarily not complete will certainly
clarify some matters which are still in the dark, even if you
should already know one or the other reported fact. This is so
despite partly incorrect facts which however hardly affect the
picture as a whole. The pending court proceedings which have
been instituted by staff members affected by the current
development of D. and by myself will finally throw light on all
details.
I would be pleased to have the opportunity for a personal
conversation in which I could discuss not only the past, but also
future developments on the German media market. I shall in due
time ask for an appointment for this purpose."
The letter was accompanied by various articles concerning the
financial and staff situation of D. which had been subsequently
published by six newspapers with a wide circulation. While containing
critical remarks on the applicant they also expressed severe criticism
of his former employer. One article of 21/22 September 1984 stated
that D.'s financial situation had become worse than at the time of the
bankruptcy in April 1983, and also mentioned that five clients intended
to terminate their contractual relations with D. Another article
reported that a number of clients of news agency D. had stopped their
subscription to its services because of deficiencies in the quality of
the journalistic product and failure to provide for particular forms
of distribution such as online text or teletext. This was illustrated
by several examples. The article also mentioned that the news agency
risked to lose one of its major clients, which subsidised a news
service in English which had become rather poor.
On 11 October 1984 the Cologne Court of Appeal (Oberlandes-
gericht), upon the applicant's appeal, quashed the Bonn Regional
Court's decision of 17 September 1984, and recognised the applicant's
right to reply to his employer's press release in the terms chosen by
him. The applicant's reply was printed one month later.
On 28 October 1984 the news agency D., referring to the
applicant's circular letter, again pronounced his dismissal.
In February 1985 D. transferred any claims against the applicant
to the limited company E. holding 25% of the shares of D., and
authorised it to bring such claims in its own name. Thereupon, E.
extended injunction proceedings before the Düsseldorf Regional Court,
which it had brought against the author of the first of the above-
mentioned articles, a journalist, to the applicant. E. submitted that
the applicant had infringed unfair competition law, inter alia, by
addressing the above circular letter with enclosures to clients of the
news agency. In a judgment of 24 October 1984, the journalist
concerned was prohibited from stating that D.'s financial situation had
become worse than at the time of the bankruptcy in 1983.
In March 1985 the applicant himself started a news agency.
On 29 January 1986 the Düsseldorf Regional Court dismissed the
action of the limited company E. The Regional Court found in
particular that E. was not entitled to bring, in its own name,
injunction proceedings against the applicant.
On 11 December 1986 the Düsseldorf Court of Appeal, upon the
appeal of the company E., which was joined by the news agency D.,
partly amended the Regional Court's decision. The Court of Appeal
ordered the applicant to refrain from adverse comments on the
activities of the news agency D. by transmitting to third persons a
selection of articles on his litigation with D. with the remark that
despite partly incorrect facts, the picture as a whole would hardly be
affected, and that pending court proceedings which had been introduced
by staff members affected by the current development of D. and by the
applicant himself would finally throw light on all details. It also
ordered him to disclose to the limited company E. the recipients of his
circular letter of 25 September 1984. It finally held that he was
liable to compensate E. for all damage caused to D. by the distribution
of the circular letter. The remainder of the appeal was dismissed.
The decision was based on S. 1 of the Unfair Competition Act
(Gesetz gegen den unlauteren Wettbewerb) which reads:
<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."
<English translation>
"Any person who in the course of business commits, for purposes
of competition, acts contrary to honest practices may be enjoined
from further engaging in those acts and held liable for damages."
The Court of Appeal found that the applicant, in his circular
letter enclosing especially two critical articles, had adversely
commented upon D.'s activities, particularly the quality of its
reporting, the unreasonable costs of its services and the lack of
modern techniques. Such statements were likely to depreciate D. in the
eyes of its present or future clients. While these critical remarks
were not contained in the circular letter itself but in the press
articles annexed to it, the applicant had endorsed the factual
statements and value judgments by confirming them in his circular
letter as being essentially correct.
Furthermore the Court of Appeal considered that the applicant had
acted for purposes of competition in business transactions. Already
before sending his circular letter, the applicant had planned to found
his own news agency. The distribution of his circular letter with
enclosures to clients of D. as well as D.'s or his potential clients
was capable of promoting the competitiveness of his own envisaged news
agency. Taking the identical clientele into account, a competitive
relationship could be assumed, although the applicant's news agency had
not yet existed at the relevant time.
The applicant had also acted with competitive intent. There was
a factual assumption (tatsächliche Vermutung) of competitive intent
where activities were objectively capable of promoting one's own
competitivenes to the detriment of somebody else's. The applicant's
competitive intent was further confirmed by the circumstances of the
case, in particular his plans to set up his own news agency and the
timing of their realisation, and the suggestion, in the last paragraph
of the circular letter, to have conversations about, inter alia, the
future development of the German news market.
The question whether the detrimental statements concerning D. had
been correct justifying the negative judgments based thereupon could
be left open as even the distribution of true information constituted
unfair competition if a competitor was depreciated without sufficient
reason.
As regards the remainder of the action, the Court of Appeal found
that the plaintiffs had failed to prove that the applicant had
disclosed professional secrets.
On 26 November 1987 the Federal Court of Justice (Bundes-
gerichtshof) refused to admit the applicant's appeal on points of law
(Revision) on the grounds that the case was of no fundamental
importance, and that the appeal offered no prospect of success.
On 4 October 1988 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint on the ground that it was ill-founded.
The Constitutional Court found that the civil court decisions
complained of, which concerned an injunction under S. 1 of the Unfair
Competition Act, did not disclose any appearance of a violation of the
applicant's rights to the free development of his personality, to
freedom of expression and to the free choice of trade, occupation or
profession, as guaranteed by the Basic Law (Grundgesetz).
The Constitutional Court found that the impugned court decisions
had only prohibited the applicant from using a particular form of
expression and particular formulations. The Court of Appeal's decision
did not extend to the expression of particular ideas irrespective of
the means of expression or the form of their presentation. The
applicant had not generally been prevented from uttering criticism of
the news agency D. Having regard to this evident limitation of the
injunction, there was no danger of chilling effects or other negative
consequences of considerable importance on the general exercise of the
applicant's freedom of expression.
The constitutional review had to be based on the Court of
Appeal's finding that the applicant's circular letter had been intended
to serve his economic interests and that he had acted for purposes of
competition. Constitutional law could only be violated so far as the
applicant's rights under the Basic Law were relevant for the
interpretation and application of S. 1 of the Unfair Competition Act,
in particular the notion of acting contrary to honest practices.
The Constitutional Court considered that there was no indication
that the impugned decisions violated the applicant's right to freedom
of expression.
The Constitutional Court accepted that the applicant, in
distributing his circular letter with annexes, had expressed an opinion
covered by Article 5 para. 1 of the Basic Law, notwithstanding that it
also came within the scope of unfair competition law.
In the present case, the interference with the applicant's
freedom of expression was based upon S. 1 of the Unfair Competition
Act, a law of general application limiting the freedom of expression.
It had to be interpreted with due regard to the importance of freedom
of expression; thus its limiting effect on that freedom had to be
restricted accordingly. Relevant criteria for the qualification of a
detrimental statement by a competitor were its motive, and its aim and
purpose. If it was not motivated by a person's own economic interests,
but by his concern for political, economic, social or cultural
interests of public importance, the freedom of expression prevailed
over private and in particular economic interests. However, the
protection of such private interests was to be given more weight, if
the statement in question was directly affecting private interests in
pursuance of self-interest, and not contributing to the exchange of
opinions on matters of considerable public interest. In any case, the
prejudice to the person concerned had to remain within the limits of
necessity and appropriateness. In this context the means used to
achieve the intended aim were important. In the present case, the
applicant had distributed a great number of critical and mostly
negative press articles to D.'s actual or potential clients.
The Court of Appeal had applied these principles in line with the
constitutional requirements. It had explained in detail that the
applicant's expression of opinion served purposes of competition, and
that it was not justified in the circumstances of the present case.
According to the Constitutional Court, the applicant had not
aimed at influencing public opinion, but sent his circular letter only
to a limited number of persons working in this business sector and
known to him. His suggestion of a personal conversation disclosed his
predominant intention to ensure existing and future business contacts
with the addressees of his circular letter, and thus to promote his own
commercial interests and his competitiveness in the news market. There
was therefore no appropriate balance between the aim pursued by the
applicant and the interference with the interests of the news agency
D. and its share-holding company.
The press release of the news agency D., which contained
depreciating remarks about the applicant, could not justify the
applicant's behaviour either. An attack in a public debate could in
principle justify a sharp and even depreciating reaction within the
sphere of public debate. However, the applicant's reaction had taken
place outside the sphere of public discussion and had not aimed at
influencing public opinion.
Meanwhile, in the proceedings concerning the applicant's
dismissal, the Bonn Regional Court had declared that the applicant's
contract had not been terminated. On 11 October 1988 the Cologne Court
of Appeal, upon D.'s appeal, partly amended the Regional Court's
decision to the effect that the contract of employment had been
terminated upon the applicant's dismissal of 28 October 1984 following
the distribution of the circular letter.
Compensation proceedings instituted by company E. against the
applicant on the basis of the Court of Appeal's judgment of 11 December
1986 remained unsuccessful.
COMPLAINTS
The applicant complains under Article 10 of the Convention that
the German court proceedings concerning the injunction issued against
him in respect of his circular letter of 25 September 1984 violated his
right to freedom of expression.
The applicant submits in particular that the restriction imposed
on him cannot be justified under Article 10 para. 2 as it was not
"necessary in a democratic society for the protection of the rights of
others". He states that the contents of the press articles distributed
by him were true, and he had not presented them in a misleading manner.
In reaction to the preceding attack by the news agency D., he had aimed
at influencing public opinion in writing to leading journalists who had
been informed of the discussion on the policies of this news agency.
As he did not dispose of the same publishing means as this news agency,
which had refused to print a reply, it was for him to choose the means
by which he could best defend his interests.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 April 1989 and registered
on 7 June 1989.
On 7 May 1990 the Commission decided to bring the application to
the notice of the respondent Government and invite them to submit
written observations on its admissibility and merits.
The Government's observations were submitted on 15 October 1990.
On 12 December 1990 the applicant submitted his observations in reply.
On 5 September 1991 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
The hearing took place on 3 December 1991. The Government
represented by their Agent, Mr. J. Meyer-Ladewig, and Mr. A. von
Mühlendahl as well as Mrs. L. Babby as Advisers. The applicant was
represented by Mr. W. Meilicke, a lawyer practising in Bonn, who was
assisted by Mr. Th. Heidel and Mr. H. Meilicke. The applicant was also
present.
THE LAW
The applicant complains under Article 10 (Art. 10) of the
Convention that the injunction issued against him in respect of his
circular letter violated his right to freedom of expression.
Article 10 (Art. 10) of the Convention reads, so far as relevant,
as follows:
"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
...
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 Government, referring to the case-law of the European Court
of Human Rights (Markt Intern Verlag GmbH and Klaus Beermann judgment
of 20 November 1989, Series A no. 165), maintain that the interference
with the applicant's freedom of expression was justified under Article
10 para. 2 (Art. 10-2) of the Convention.
The parties' submissions concern the question whether the
interference was "necessary in a democratic society" for the protection
of the reputation and the rights of others, namely the competitive
interests of the news agency. The applicant denies this proposition,
whilst the Government maintain it.
The Commission finds that the applicant's complaint under Article
10 (Art. 10) of the Convention about the injunction issued against him
in respect of his circular letter raises questions of fact and of law,
which are of such complexity that their determination requires an
examination on the merits. The application is therefore not manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)