Commercial Speech, Privacy, Data Protection and Retention
Ernst August von Hannover v. Germany
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The European Court of Human Rights held that the conviction of a veterinary surgeon for publicly advocating for 24-hour clinics in Hamburg violated his right to freedom of expression. Dr. Barthold was one of the few veterinary surgeons in Hamburg and was featured in a journal interview, in which he stated that Hamburg ought to have a regular service for attending to animals. Following the publication of the article, a lawsuit was brought against Barthold, alleging that he had instigated publicity and advertising his round-the-clock emergency service. The Court reasoned that the conviction that had been imposed prohibited Barthold from providing his opinion, and also held that the issue of unfair publicity or advertising was secondary to the larger public issue of not having enough veterinary clinics beyond the normal hours of business.
As a practicing veterinary surgeon, Dr. Barthold was one of only a few who would provide a round-the-clock emergency service in Hamburg, and he was a staunch advocate of the need for a 24 hour service. In August 1978, a journalist wrote an article siding with Dr. Barthold’s position that the city ought to have “a regular service for attending to animals.” The article summarized an interview with Barthold and was illustrated with his photograph and the name of his clinic. Barthold was quoted saying that by promoting more services at night, “Hamburg’s animal lovers would then no longer have to get sore fingers trying to ring up veterinary surgeons, looking for one who is prepared to help.” He continued to say that “our telephone rings between two and twelve times each night. Of course these are not all emergency cases. Sometimes advice over the telephone is all that is needed.”
Following publication of the article, a lawsuit was brought against Barthold alleging that he had instigated publicity and advertising his round-the-clock emergency service in contravention of rules of professional conduct. While the first instance court acquitted him, on appeal, Barthold was found to be in breach of the rules of professional conduct and he was prohibited from making similar statements and appearing in similar press reports in the future.
Following the Constitutional Court’s refusal to review the decision, Barthold lodged an application with the European Court of Human Rights in July 1979.
The main issue before the Court was whether the conviction and subsequent injunction was “necessary in a democratic society.” As a general principle, the Court explained that the adjective “necessary”, “is not synonymous with ‘indispensable.’ Neither does it have the flexibility of such expressions as ‘admissible,’ ‘ordinary,’ ‘useful,’ ‘reasonable’ or ‘desirable;’ rather, it implies a ‘pressing social need.’” [para. 55] The Court further explained that while Contracting States enjoy a certain margin of appreciation in assessing the need for imposing restrictions, it is for the Court to make the final determination as to whether “the interference in issue corresponds to such a need, whether it is proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.” [para. 55]
In light of these principles, the Court reviewed whether the article in which Dr. Barthold’s interview was summarized had the specific objective of informing the public about the absence in Hamburg of a night service operated by the entirety of veterinary surgeons. Holding that this was indeed the case, the Court then concluded that the injunctions overstepped the limits of the requirements of proportionality and necessity. The Court held that the injunction that had been imposed effectively prohibited Barthold him from providing his opinion, when this would be accompanied by his name and his position as director of a clinic. The Court also held that the issue of unfair publicity or advertising was secondary to the larger public issue of not having enough veterinary clinics beyond the normal hours of business. Lastly, the Court expressed its concern that overly restrictive measures on commercial speech risk “discouraging members of the liberal professions from contributing to public debate on topics affecting the life of the community if ever there is the slightest likelihood of their utterances being treated as entailing, to some degree, an advertising effect.” [para. 58]
Accordingly, the Court concluded that the interference imposed by the German courts violated Barthold’s right to freedom of expression.
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