No animal rights campaign instrumentalising the Holocaust image (at least in Germany), PETA v Germany, 43481/09

PETA Deutschland (People for the Ethical Treatment of Animals) tried to organize an advertising campaign under the head “The Holocaust on your plate” in Germany but it was banned, and the European Court of Human Rights confirms the ban. The posters had to make a photo parallel between Holocaust and the pain of animals. PETA intended to use the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption” (§ 7).

PETA tried to explain that they do not trivialize the suffering of human beings, neither they have any anti-Semitic background. In the USA and Austria, this campaign did not meet such obstacles (§ 28).

The ECtHR replied that the ban is necessary in a democratic German society because of the German past, because they deem themselves under a special obligation towards the Jews (§ 49). The ban is proportional, since PETA remains free to find other means of drawing public attention to the issue of animal protection (§ 50).

ECHR bans advertising of UFO contactors, MRS, 16354/06

On 13/07/2012 by a majority of 9 votes to 8 the European Court of Human Rights supported the decision of Swiss authorities to ban a poster campaign of the Swiss Raelian Movement (Mouvement raëlien suisse) promoting contacts with extra-terrestials. Mr. Claude Vorilhon (Raël) who allegedly entered into a direct contact with extra-terrestrials (Elohim) from an Unidentified Flying Object in 1973 founded the Movement in 1975. It unites UFO contactors, as well as people interested in inter-galactic relations.

The prohibited 97 cm by 69 cm poster was showing extra-terrestrials’ faces, a pyramid and a flying saucer, had slogans “The Message from the Extra-Terrestrials” and “Science at last replaces religion”, as well as a reference to the website http://www.rael.org (§ 14).

The Strasbourg judicial majority supported the ban on the UFO contactors’ poster in 2 steps:

1. The Court declared that the nature of the poster is not political but rather commercial, which means that the State’s margin of appreciation is broader (§ 62). The minority of 8 judges counter-argued that the Movement did not try to sell anything but rather to spread its world vision, which means that the poster is non-commercial or philosophical. The Movement position is that this interpretation allows the State to justify a systematic refusal and oppose expression of non-majority ideas in public on a permanent basis (§ 34).
2. The ECtRH declared that such reasons as support of human cloning, geniocracy (society governed by intellectual elite), and the fact that certain members of the Movement had been accused of paedophilia, "taken together" may “reasonably entitle” the national authorities to ban the poster. Although, he majority of judges admitted that “taken separately” these 3 facts “might not be capable of justifying” the ban (§ 72). The UFO contactors argued that they had not been participating in any human cloning but simply expressing their favourable opinion about it, and that geniocracy was not a real political project but a mere utopia (§ 36). The minority of 8 judges pointed that no cases of paedophilia had been proven, and that otherwise the Movement as such would already be banned.

The Movement expressed its intent to continue the litigation before the UN HRC.

EU General Court: USSR coat of arms may not be registered as a trademark, Couture Tech Ltd., T-232/10

UK company Couture Tech Ltd. tried to register Soviet coat of arms as a trademark. The EU General Court refused because this symbol is prohibited in Hungary, Latvia and Czech Republic, and therefore is contrary to public policy and morality (§ 60).

Couture Tech argued that, unlike the swastika, the political connotation of the USSR coat of arms has been diffused and transformed into a provocative one, connected with the concept of the avant-garde, so that the trademark applied for had acquired “a new distinctiveness” (§ 46).

The EU General Court replied that it is still perceived as a political symbol (§ 64).

ECHR: the son of French President de Gaule could not insult Harki, since they are not defined, Boumaraf, 32820/08

Mr. Philippe de Gaulle, while making a comment on his book about his father Charles de Gaulle, implied that 100 000 Harki were traitors – at least as Mr. Amar Boumaraf understood this. The Harki are usually understood as Muslim Algerians who served as auxiliaries in the French Army during the Algerian War from 1954 to 1962.

Initially the question was whether the Harki are a “sufficiently limited group”. There are three judgments (15/10/1985, 06/12/1994, 12/09/2000) of the French Court of Cassation recognizing the existence of this group. Before the ECHR, the question was transformed into whether these three judgments are a “well-established jurisprudence”. The ECHR replied that despite a clear definition of the Harki in the judgment dated 12/09/2000, it “alone” cannot create a “well-established jurisprudence”.

ECJ: European immunity of an MEP does not cover defamation, Patriciello, C-163/10

A Member of the European Parliament (MEP) has two kinds of immunity: the one guaranteed by the EU law in cases related to her opinions, and in other cases it is provided or not by national law. Italian MEP Aldo Patriciello has publicly declared that a police officer falsified the time concerned when booking several drivers whose vehicles were parked in contravention of road traffic laws. Thus, he made a “false accusation of a public official with aggravating circumstances” according to the prosecution (§ 11).

On 05/05/2009 the European Parliament decided to defend the immunity of Mr. Patriciello in arguing that this declaration is a political opinion expressing the right of the citizens to have an easy access to a hospital, which had an important impact on the daily life of his constituents. The MEP did not act for his own interest, and did not intend to insult the policewoman (§ 12).

However according to the ECJ this kind of opinion accusing the police officer did not have a “direct and obvious” connection with “parliamentary duties” (§§ 35-36). It must be underlined that this interpretation is applicable to the immunity directly provided by the EU law, but not to that existing under national law.

Extracting fraud investigation documents from the OLAF, Tillack, 943/2007/PB

Fraud is an old problem of the EU. After the memorandum of whistleblower Paul van Buitenen dated 07/03/2002, and inaction of the OLAF (Office of Anti-Fraud Fight), journalist Hans-Martin Tillack published 2 articles on the subject in Stern. The OLAF decided to punish the journalist. He was accused of handing over € 8000 for certain investigation documents to an OLAF official. The OLAF requested the German prosecution to open an investigation, but Germans closed it (§ 3).

The complainant in case 943/2007/PB requested the OLAF to disclose the name of the OLAF official who signed the letter to the German prosecution, as well as the letter itself, to disclose the instructions to the relevant OLAF staff who negotiated starting the “swift action” against journalist Tillack with the Hamburg prosecution, as well as to disclose other documents on possible fraud within the European Commission.

The complainant filed the same request twice but the OLAF ignored it. Only after filing a complaint to the European Ombudsman the OLAF disclosed the name of its official who initiated the persecution of the journalist (§ 40), as well as provided a partial access to the documents.

The Ombudsman explained that the institution must give valid reasons enabling the applicant to decide whether the non-disclosure is grounded, and not limit itself with a simple statement that “it carried out a concrete and specific examination” (§ 58).

ECtHR introduces the right to whistle-blow, Heinisch, 28274/08

ECtHR interpreted that the freedom of expression protects whistle-blowers from dismissal. Ms Brigitte Heinisch, geriatric nurse employed by Vivantes Netzwerk für Gesundheit GmbH to assist the elderly, complained about possible fraud to its superiors, and later filed a criminal complaint to the prosecution. The story became public and she was dismissed for this (§ 3). The deficiencies in institutional care were also pointed by the Medical Review Board of the Health Insurance (Medizinischer Dienst der Krankenkassen, §§ 7 and 9) and by the Berlin Inspectorate for Residential Homes (§ 84), but the prosecution discontinued the criminal investigation.

I like this judgment because it de facto gave a binding effect to the Termination of Employment Convention C158 of the International Labour Organisation (§ 39) and to the Resolution 1729(2010) on The Protection of Whistle-Blowers issued by the Parliamentary Assembly of the Council of Europe (§ 37).

The ECtHR rejected the argument of the German Government that Ms Heinisch was unable to prove the fraud (§ 53) with pointing that she acted in good faith, and there was a factual ground to do so.

The ECtHR didn’t accept the German argument on the duty of loyalty (§ 55), since this duty disappears after a number of internal complaints (§ 73). Even more so given the fact that the public authorities (Land of Berlin) controlled the majority of Vivantes GmbH shares (§ 71).

ECtHR: freedom of expression allows a journalist to say that a wine is “shit”, Uj, 23954/10

Hungarian Supreme Court made a reprimand to journalist Péter Uj for characterizing wine produced by T.Zrt  as “shit”, i.e defamation violating the right to good reputation (§§ 8-9). He wrote: “hundreds of thousands of Hungarians drink this shit with pride, even devotion” (§ 6), and the ECtHR understood him.

The ECtHR concluded that this reprimand had been unnecessary in a democratic society, that there was no pressing social need (§ 19) to sanction the wine expert. The judges focused on the purpose of the word “shit” that was not to insult but to serve merely as a stylistic decoration (§ 20), since calling a low quality wine “shit” is a common practice (§ 24). In this context, “shit” is not defamation but a value judgment raising awareness about the disadvantages of the economic policy (§ 23).

Participant of a sadomasochistic Nazi orgy lost his case, Mosley v UK, 48009/08

News of the World made public a video where Max Mosley, former head of Formula 1, participates in a sadomasochistic “Nazi” orgy with 5 prostitutes. The orgy client got £ 60 000 from the journalists as damages but continued in Strasbourg.

The 7 judges chamber of the ECtHR recognized him a “victim”, since the £ 60 000 did not cover the absence of pre-notification before publishing the video seen 1.4 million times in 2 days (§§ 11, 67, 72, 73).

However the ECtHR did not accept that the absence of pre-notification violates the right to private life (Article 8 of the Convention), since:

1) A pre-notification requirement would not stop the journalists. Such a requirement would unavoidably have a public interest exception, and the fact of feeling yourself good in performing a Nazi (in an SM orgy) raises a public concern (§ 127).
2) A pre-notification requirement would violate the freedom of expression of journalists under Article 10 of the Convention (§ 129).

11 media companies and NGOs filed their observations.