Case Summary and Outcome

The European Court of Human Rights (ECtHR) found an injunction issued by German courts prohibiting Ulrich Brosa from distributing pamphlets urging others not to vote for a mayoral candidate who had allegedly provided “cover” for a neo-Nazi organization amounted to a violation of Brosa’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

Facts

During the run-up to local elections, Brosa circulated a pamphlet alleging that neo-Nazi organizations were active in his town. The pamphlet called on voters not to vote for one of the candidates for mayor because he had certain connections to these organizations. Specifically, the pamphlets claimed the candidate was providing “cover” for a “particularly dangerous” organization, and it strongly implied that the organization supported neo-Nazism.

To support the claim that the candidate “covered” for the organization, Brosa’s pamphlet made reference to a letter to the editor of a local newspaper in which the candidate had contended that the association in question “had no extreme right-wing tendencies.” A German district court found that the statement in the leaflet infringed upon the candidate’s personality rights, and that Brosa had failed to provide sufficient evidence to support his claims regarding the candidate. The candidate then sought and obtained an injunction against Brosa, requiring that he cease distribution of the pamphlets.

On appeal, a German court noted that the organization in question was indeed being monitored by German authorities under suspicion of so-called “extremist” activities, but nevertheless found that to use the term “cover,” Brosa had to have proven that the candidate had knowledge of the organization’s neo-Nazism and endorsed it. The German court also gave a narrow reading to the term “neo-Nazi” and found that Brosa had merely asserted that the organization in question was a neo-Nazi organization without providing sufficient evidence. As a result, the appellate court upheld the injunction.

Brosa then lodged the current application before the ECtHR.

Decision Overview

In a unanimous decision, the ECtHR found that the German courts’ injunction prohibiting the distribution of Brosa’s pamphlet violated Brosa’s right to freedom of expression. The restriction on Brosa’s expression was not justified because it could not be considered “necessary in a democratic society.”

The ECtHR found that, because the pamphlet in question set out Brosa’s view of a candidate’s suitability for office, it was “political in nature” and “concerned a matter of public interest.” Thus, the German courts had to reconcile the restrictions on Brosa’s freedom of expression with one of the justifications listed in Article 10 of the ECHR.

The ECtHR could not accept the domestic courts’ view that Brosa’s neo-Nazi allegations were unsubstantiated assertions of fact. The ECtHR noted that the domestic courts had found that German authorities were monitoring the organization under suspicion of “extremist” activities and, in contrast to the domestic courts, found that the term “neo-Nazi” was capable of evoking a broad range of interpretations among those who read it.  As such, the term “neo-Nazi” carried a clear element of value judgment that was not fully susceptible to proof. Because the domestic courts found that “neo-Nazi” described a specific mindset, they required Brosa to substantiate the allegation with “compelling proof.” The ECtHR found that this constituted a disproportionally high degree of factual proof.

The ECtHR also took issue with the German courts’ restrictive interpretation of the term “cover.” It could not agree that the term indicated that the candidate had knowledge of the association’s neo-Nazism and endorsed it. Rather, it considered the term in context of the entire message and concluded that the message contributed to public debate.

Accordingly, the ECtHR unanimously found that the domestic courts had failed to establish a pressing social need to put the protection of the candidate’s personality rights above Brosa’s Article 10 right to freedom of expression, and that Brosa’s disproportionately high burden of proof failed to strike a fair balance between the candidate’s personality rights and Brosa’s rights. Thus, the injunction violated Article 10 of the ECHR.