The applicant association is the German branch of the animal rights organisation PETA (People for the Ethical Treatment of Animals). It pursues, inter alia, the aims of preventing animal suffering and of encouraging the public to abstain from using animal products.
In March 2004 the applicant association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and 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”.
In March 2004, three individual persons, P.S., C. K. and S. Korn, filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. The plaintiffs were at the time the president and the two vice-presidents of the Central Jewish Council in Germany. All of them had survived the Holocaust when they were children; C.K. lost her family through the Holocaust. They submitted that the intended campaign was offensive and violated their human dignity as well as the personality rights of C. K.’s dead family members.
On 18 March 2004 the Berlin Regional Court granted the injunction. By judgment of 22 April 2004, that same court confirmed the interim injunction. The court considered that the plaintiffs had a claim to be granted injunctive relief under section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, sections 185 et seq. of the Criminal Code and Article 1 §§ 1 and 2 of the German Basic Law (see relevant domestic law, below). According to the Regional Court, the plaintiffs were concerned by the impugned statements in their capacity as former victims of the Holocaust.
The Regional Court further considered that the impugned representations constituted expressions of opinion and were thus protected under Article 5 of the Basic Law. This right protected expressions of opinion even if they were formulated in a polemic or offensive way. The depictions were particularly disturbing and drew a high degree of media attention because the pictures combined on the posters showed seemingly similar situations, which could only be discerned by the fact that one side showed coloured photographs of animals and the other black-and-white photos of humans, both alive and dead. Seen from the point of view of an ordinary spectator, the impugned posters had to be interpreted as putting the fate of the depicted animals and of the depicted humans on the same level.
There was no indication that the applicant association’s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection. The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals.
[…], the Federal Constitutional Court did not find it necessary to decide whether the intended campaign violated the plaintiffs’ human dignity, as the impugned decisions contained sufficient arguments which justified the injunction without reference to a violation of the plaintiff’s human dignity. It was, in particular, acceptable that the domestic courts based their decisions on the assumption that the Basic Law drew a clear distinction between human life and dignity on one side and the interests of animal protection on the other and that the campaign was banalising the fate of the victims of the Holocaust. It was, furthermore, acceptable to conclude that this content of the campaign affected the plaintiffs’ personality rights. Referring to its earlier case law, the Federal Constitutional Court considered that it was part of the self-image of the Jews living in Germany that they belonged to a group which had been sampled out by their fate and that a special moral obligation was owed to them by all others, which formed part of their dignity.
The applicant association submitted, in particular, that the impugned decision was based on a wrong assessment of the facts. It was not true that the impugned posters equalised the pictures of the Holocaust and the pictures of intensive mass animal farming, they merely showed disturbing similarities of the treatment of Holocaust victims and animals. Even if one should assume that the representations postulated equality between the depicted humans and animals, this was not suited to debase the depicted Holocaust victims. According to the applicant association’s conviction, which was increasingly shared within society, animals had to be regarded as equal fellow creatures.
The poster campaign was in no way intended to debase or insult the persons represented on the posters and did not violate any of the plaintiffs’ rights. It was neither trivialising the suffering, nor did it have any anti-Semitic background. The applicant association pointed out that the posters did not depict the applicants and that it was not even certain that all the persons depicted on the photographs were of Jewish Faith. Many persons of Jewish origin would not consider that such a comparison would violate their personality rights and had even made such comparisons in their own publications or had participated in the original planning of the campaign. Holocaust comparisons were not unlawful and had been widely used in public debate. The Supreme Court of Austria, in its decision given on 12 October 2006 (see paragraph 23, above) had rejected a request for granting a civil injunction against the publication of the impugned posters in Austria.
The applicant association further submitted that the interference with their Convention rights had not been necessary in a democratic society. The domestic courts had failed to consider that, under the Court’s case-law, freedom of expression constituted one of the essential foundations of a democratic society and that a special degree of protection was afforded to expressions of opinions which were made in the course of a debate on matters of public interest. The applicant association accepted that the historical background in Germany made it necessary to apply specific criteria enabling every person of Jewish origin to take steps against anti-Semitic discrimination. However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered collective insult.
The applicant association considered that it was thus not even necessary to strike a balance between any competing interests. Even if such a balance was to be struck, the applicant association’s right to freedom of expression had to take precedence. The German courts had failed to weigh the competing interests, having particular regard to the fact that the applicant association pursued objectives of the highest ethical and moral standards, as was further supported by the fact that the protection of animal rights was expressly mentioned in Article 20 a of the German Basic Law. Due to sensory overload through commercials and advertisements, the applicant association was dependent on gaining attention for its cause in drastic ways. It thus did not matter that the applicant association would have had other means at its disposal to express its opinion.
According to the Government, the domestic courts had given extensive and relevant reasons for letting the plaintiffs’ personality rights prevail over the applicant’s right to freedom of expression. They had, in particular, taken into account that the applicant association intended to express itself on a subject of public interest and that it did neither intend to debase the victims of the Holocaust nor to banalise their suffering. On the other hand, the domestic courts had taken into account the gravity of the violation of the plaintiffs’ personality rights. Furthermore, it had to be considered that the sanction imposed on the applicant association had not been very severe and that the applicant association had numerous other possibilities to express their protest against mass animal farming.
The Court notes that it is common ground between the parties that the impugned measure constituted an “interference by [a] public authority” with the applicant’s right to freedom of expression as guaranteed under Article 10 of the Convention. The Court endorses this assessment. Such interference contravenes the Convention if it does not satisfy the requirements of paragraph 2 of Article 10. It therefore falls to be determined whether the interference was “prescribed by law”, had an aim or aims that is or are legitimate under Article 10 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims.
The Court notes that the interference had a legal basis in section 823 §§ 1 and 2 in conjunction with section 1004 of the Civil Code, and section 185 of the Criminal Code (compare paragraph 21, above). The Court observes that the applicant association did not contest that these provisions, under the established domestic case-law, grant any person whose personality rights risk being violated by another person a claim to compel that other person to refrain from performing the impugned action. There is no doubt that the relevant texts were accessible to the applicant association. As to the question of whether the domestic courts correctly applied these provisions, the Court reiterates that the application and the interpretation of the domestic law primarily fall within the competency of the domestic authorities which are, in the nature of things, particularly well placed to settle the issues arising in this connection (compare inter alia Barthold v. Germany, 25 March 1985, § 48, Series A no. 90). The Court observes that the applicant association’s argument primarily evince its disagreement with the domestic courts’ decisions. Accordingly, the Court is satisfied that the injunction complained of was “prescribed by law”.
The Court is further satisfied that the interference pursued the legitimate aim of protecting the plaintiffs’ personality rights and thus “the reputation or rights of others”.
It thus remains to be determined whether the interference was “necessary in a democratic society”. In the judgment of Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99 ECHR 2004‑XI, the Court summarised the general principles in its case law as follows:
“68. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V, and Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII).
The Court recalls that the domestic authorities have a variety of tools at their disposal allowing them to strike a fair balance between the various interests at stake. In assessing the proportionality of the measure at issue they have, beyond the complete prohibition or authorisation of the expression of an opinion, in particular the option of setting specific limits to the authorisation or to the prohibition. Moreover, freedom of expression is applicable to not only “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012, with further references). Furthermore, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see, among other authorities, Ceylan v. Turkey [GC], no. 23556/94, § 33, ECHR 1999‑IV; Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 92, ECHR 2009 and Mouvement raëlien v. Switzerland [GC], no. 16354/06, § 61, 13 July 2012).
Turning to the circumstances of the instant case, the Court observes, at the outset, that the applicant association’s intended poster campaign concerned battery animal-farming. Accordingly, as it related to animal and environmental protection, it was undeniably in the public interest (compare Verein gegen Tierfabriken Schweiz, ibid.). It follows that only weighty reasons can justify the interference with the applicant’s right to freedom of expression in this context. The Court further observes that the domestic courts adjudicating the applicant’s case carefully examined whether the issue of the requested civil injunction would violate the applicant association’s right to freedom of expression. In doing so, the domestic courts applied the standards developed by the Court as set out above. They expressly accepted that the impugned representations constituted expressions of opinion and where thus protected under the right to freedom of expression. They further acknowledged that this right protected expressions even if they were formulated in a polemic or offensive way (compare paragraph 10, above) and that the impugned posters related to questions of public interest, as they were obviously intended to criticise the conditions under which animals were kept (compare paragraph 11, above).
The Court further observes that the domestic courts considered that the intended poster campaign did not pursue the aim to debase the depicted concentration camp inmates, as the pictures merely implied that the suffering inflicted upon the depicted humans and animals was equal. The domestic courts considered, however, that the applicant association confronted the plaintiffs with their suffering and their fate of persecution in the interest of animal protection. It was this “instrumentalisation” of the plaintiffs’ suffering that violated their personality rights in their capacity as Jews living in Germany and as survivors of the Holocaust. This violation was aggravated by the fact that the depicted Holocaust victims were shown in a most vulnerable state. Having regard to the seriousness of this violation, the courts considered that the applicant association’s interests in publishing the impugned pictures had to cede. While expressing its doubts as to whether the intended campaign violated the human dignity of either the depicted persons or the plaintiffs, the Federal Constitutional Court endorsed the lower courts’ assessment that the campaign banalised the fate of the Holocaust victims and that the violation of the plaintiffs’ personal honour was particularly serious.
The Court considers that the facts of this case cannot be detached from the historical and social context in which the expression of opinion takes place (compare Hoffer and Annen, cited above, § 48 and Rekvényi v. Hungary [GC], no. 25390/94, §§ 46 et seq., ECHR 1999‑III). It observes that a reference to the Holocaust must also be seen in the specific context of the German past (see Hoffer and Annen, ibid.) and respects the Government’s stance that they deem themselves under a special obligation towards the Jews living in Germany (compare paragraph 36, above). In the light of this, the Court considers that the domestic courts gave relevant and sufficient reasons for granting the civil injunction against the publication of the posters. This is not called into question by the fact that courts in other jurisdictions might address similar issues in a different way (also compare Müller v. Switzerland, 24 May 1988, § 36 , Series A no. 133).
The Court further recalls that the nature and severity of any sanction imposed are also factors to be taken into account when assessing the proportionality of the interference (see, among other authorities, Ceylan, cited above, § 37 and Annen II v. Germany (dec.), nos. 2373/07 and 2396/07, 30 March 2010). Turning to the circumstances of the instant case, the Court notes that the proceedings at issue did not concern any criminal sanctions, but a civil injunction preventing the applicant association from publishing seven specified posters. The Court finally observes that the applicant has not established that it did not have other means at their disposal of drawing public attention to the issue of animal protection.
Having regard to the foregoing considerations and, in particular, to the careful examination of the case by the domestic courts, the Court accepts that the civil injunctions issued against the applicant association were a proportionate means to protect the plaintiffs’ personality rights.
There has accordingly been no violation of Article 10 of the Convention.