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Publication:1998-VI, no. 87
Title:Hertel v. Switzerland
Application No:25181/94
Respondent:Switzerland
Referred by:Commission; Respondent State; Applicant (29-05-97)
Date of reference by Commission:03-06-1997
Date of reference by State:15-07-1997
Date of Judgment:25-08-1998
Articles:10
6-1
8
50		Conclusion:Violation of article 10
Not necessary to examine article 6-1
Not necessary to examine article 8
Compensation awarded for costs and expenses
Keywords:FREEDOM OF EXPRESSION / DEMOCRATIC SOCIETY / LIMITATIONS TO PROTECT RIGHTS AND FREEDOMS OF OTHERS

Summary:
In collaboration with Mr Blanc, a professor at the University of Lausanne and a technical adviser at the Lausanne Federal Institute of Technology, Mr Hertel carried out a study of the effects on human beings of the consumption of food prepared in microwave ovens. A research paper was written entitled "Comparative study of the effects on human beings of food prepared by conventional means and in microwave ovens". On 18 March 1992 the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances ("the MHEA") applied to the President of the Vevey District Court under the Federal Unfair Competition Act ("the UCA") for an interim order prohibiting Mr Franz Weber, on pain of the penalties provided in Article 292 of the Criminal Code. In an order of 7 April 1992 the President of the Vevey District Court dismissed the application. On 7 August 1992 the association lodged an application under the UCA with the Commercial Court of the Canton of Berne, seeking to have Mr Hertel prohibited, on pain of the penalties provided in Article 292 of the Swiss Criminal Code (imprisonment or a fine) and Article 403 of the Code of Criminal Procedure of the Canton of Berne (a fine of up to 5,000 Swiss francs or imprisonment, in serious cases for up to a year), from stating that food prepared in microwave ovens was a danger to health and led to in the blood of those who consumed it changes that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process, and from using, in publications and public speeches on microwave ovens, the image of death, whether represented by a hooded skeleton carrying a scythe or by some similar symbol. As before the President of the Vevey District Court, the plaintiff association produced a private expert's report by Professor M. Teuber of the Food Research Institute of the Zürich Federal Institute of Technology.

The European Court of Human Rights observes that it is clear therefore that the applicant has suffered an "interference by public authority" in the exercise of the right guaranteed by Article 10. Such an interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It is therefore necessary to determine whether it was "prescribed by law", motivated by one or more of the legitimate aims set out in that paragraph and "necessary in a democratic society" to achieve them. The Court reiterates that a norm cannot be regarded as a "law" within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Again, whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. In the instant case section 2 of the Federal Unfair Competition Act of 19 December 1986 ("UCA") contains a general provision in which are defined as "unfair and illegal" not only any commercial practice but also any conduct that is "deceptive or in any other way offends the principle of good faith and ... affects relations between competitors or between suppliers and customers". Furthermore, section 3, which lists certain unfair acts, provides in particular that "a person acts unfairly if ... he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements". The UCA is not therefore confined in scope solely to economic agents: people, such as Mr Hertel, who are not market players are also concerned. Any remaining doubts as to the express intention of the legislature in that regard will be dispelled by reading the Federal Council's memorandum in support of the bill, from which it is clear that the bill's sponsors intended, like the legislature in 1943, to protect competition as an "institution", and not just "competitors". Furthermore, the Federal Court had already indicated before the occurrence of the events that gave rise to the present case that the applicability of the Act of 19 December 1986 was not conditional on the tortfeasor and the injured party being "competitors"; it had held that a journalist may, through his own articles or by reproducing articles written by others, be guilty of contravening some of the provisions of the Act.

The Court consequently accepts that it was "foreseeable' that the communication to the Journal Franz Weber of the research paper and its subsequent publication were liable to amount to an act of "competition" within the meaning of the UCA. That being so, in order to conclude that the interference was "prescribed by law", the Court need only note that section 3 UCA provides "a person acts unfairly if, in particular, ... he denigrates others or the goods, work, services, prices or business of others by making inaccurate, misleading or unnecessarily wounding statements" and that section 9 provides "Anyone who through an act of unfair competition sustains or is threatened with damage to his goodwill, credit, professional reputation, business or economic interests in general, may apply to a court ... to prohibit the act if it is imminent". The Court observes that the Federal Unfair Competition Act of 19 December 1986 "is intended to guarantee, in the interests of all the parties concerned, fair, undistorted competition" and that a person who sustains or is "threatened with damage to his goodwill, credit, professional reputation, business or economic interests in general" through an "act of unfair competition" may apply to a court for an order prohibiting such act. It was under those provisions that the domestic courts granted the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances' application alleging unfair competition on the part of Mr Hertel likely to be prejudicial to the interests of its members. There is no doubt, therefore, that the aim of the measure was the "protection of the ... rights of others".

The Court reiterates the fundamental principles under its case-law. 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. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts. The Swiss authorities thus had some margin of appreciation to decide whether there was a "pressing social need" to impose the injunction in question on the applicant. Such a margin of appreciation is particularly essential in commercial matters, especially in an area as complex and fluctuating as that of unfair competition. It is however necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual's purely "commercial" statements, but his participation in a debate affecting the general interest, for example, over public health; in the instant case, it cannot be denied that such a debate existed. It concerned the effects of microwaves on human health (indeed, the only issue was over the conclusions reached by Mr Hertel in his research as set out in issue no. 19 of the Journal Franz Weber and not the subject matter of that research). In that respect, the present case is substantially different from the markt intern and Jacubowski cases cited above. The Court will consequently carefully examine whether the measures in issue were proportionate to the aim pursued. In that regard, it must balance the need to protect the rights of the members of the MHEA against Mr Hertel's freedom of expression.

The Court observes that the applicant did no more than send a copy of his research paper to the Journal Franz Weber. He had nothing to do with the editing of issue no. 19 of that periodical or in the choice of its illustration, of which he became aware only after its publication. That is clear from Mr Weber's statement of 14 April 1992 and was not called into question by either the Commercial Court of the Canton of Berne or by the Federal Court. Both courts held that the applicant's liability derived from the fact that in sending his paper to the Journal Franz Weber he had accepted its being used in a simplified and exaggerated manner - as, given the periodical concerned, it had been foreseeable that it would be - and that, consequently, he had identified himself with the article in issue. As regards the content of issue no. 19 relating to microwave ovens, the applicant was thus neither author nor co-author of the title on the cover page, the editorial column or of pages 3 to 10. The only parts that can be attributed to him are, with the exception of the titles and sub-titles appearing on them, pages 5 to 10, which contain an extract of the research paper.

The Court notes that nowhere is it expressly proposed that microwave ovens be destroyed or boycotted or their use banned and that the applicant did not repeat the statements he made in 1989 and which had been published in issue no. 8 of the Journal Franz Weber. In addition and above all, the applicant's views on the harmful effects on human health of the consumption of food prepared in microwave ovens are expressed in far less categorical terms than the Government intimated; that is to be seen in particular from the repeated use of the conditional mood and the choice of non-affirmative expressions. In that regard, the last lines from the extract, in which the applicant's conclusions from his experiments are summarised, are particularly striking. Thus, although it is stated that the results obtained "show changes which bear witness to pathogenic disorders", as regards any cancerous effects it is explained that the results present a pattern which "might" correspond to the beginning of a cancerous development and which "deserves attention"; likewise, there is no assertion that the consumption of irradiated food is harmful for man as a result of the induction of indirect radiation through food, but merely a suggestion that it "might" be. It nevertheless remains the case that the dissemination of such statements was likely to have an adverse effect on the sale of microwave ovens in Switzerland and it is to be noted in that respect that the Journal Franz Weber has a not negligible circulation of more or less one hundred and twenty thousand copies. It must nevertheless be noted that the periodical is not general in content since it deals in particular with environmental and public-health issues and is distributed almost entirely by subscription; it therefore has, in all likelihood, a specific readership such that the impact of the ideas it contains should be limited. Indeed, that was the view of the President of the Vevey District Court.

The Court also notes that in the present case it was not alleged that the publication in issue had a measurable effect on the sale of microwave ovens or caused actual damage to the members of the MHEA. In applying the UCA, the Commercial Court of the Canton of Berne and the Federal Court merely found that it was plausible that there had been such an effect. The Commercial Court in particular confined itself to holding: "... In each case ... it must be ascertained whether the behaviour of the person concerned affects the relations between competitors or between suppliers and customers... Even if there is no certain proof of a connection between the drop in turnover in respect of microwave ovens and the [defendant's] behaviour, it is clear that the statements and publications complained of in the instant case are apt to diminish sales of microwave ovens and, consequently, to harm the businesses associated with the plaintiff. The objective aptitude to affect competition is therefore established." It will be seen from the foregoing that Mr Hertel played no part in the choice of the illustration for issue no. 19 of the Journal Franz Weber, that those statements that were definitely attributable to him were on the whole qualified and that there is nothing to suggest that they had any substantial impact on the interests of the members of the MHEA. In spite of all that, the Swiss courts prohibited the applicant from stating that food prepared in microwave ovens was a danger to health and led to changes in the blood of those consuming it that indicated a pathological disorder and presented a pattern that could be seen as the beginning of a carcinogenic process, and from using the image of death in association with microwave ovens. The Court cannot help but note a disparity between that measure and the behaviour it was intended to rectify. That disparity creates an impression of imbalance that is materialised by the scope of the injunction in question. In that regard, although it is true that the injunction applies only to specific statements, it nonetheless remains the case that those statements related to the very substance of the applicant's views. The effect of the injunction was thus partly to censor the applicant's work and substantially to reduce his ability to put forward in public views which have their place in a public debate whose existence cannot be denied. It matters little that his opinion is a minority one and may appear to be devoid of merit since, in a sphere in which it is unlikely that any certainty exists, it would be particularly unreasonable to restrict freedom of expression only to generally accepted ideas. The fact that the Swiss courts expressly reserved Mr Hertel's freedom to pursue his research does not in any way alter that finding. As to presenting the results outside the "economic sphere", it is not transparently obvious from the courts' decisions that he was given such a possibility; it may be that the wide scope of the UCA would prevent those reservations being seen as providing a significant reduction in the extent of the interference in question.

Furthermore, if the applicant fails to comply with the injunction he runs the risk of a penalty, which could include imprisonment. In the light of the foregoing, the measure in issue cannot be considered as "necessary" "in a democratic society". Consequently, there has been a violation of Article 10. Having regard to its finding of a violation of Article 10, the Court, like the Commission, considers that no separate question arises under Article 6 § 1 or Article 8. The Court further holds that the respondent Government had to pay under Article 50 the costs and expenses made by the applicant.

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Last Modified: 26-02-2013 10:24:53 (Documentation SIM)