Case Summary and Outcome

The European Court of Human Rights found that a Swiss researcher’s rights to freedom of expression had been infringed when he was prevented from speaking on the potential dangers of microwave ovens. A Swiss association of household appliance manufacturers had initiated legal action against the researcher, arguing that the commercial interests of manufacturers were harmed by the researcher’s scientifically unfounded claims. The domestic courts had ruled in the association’s favor and prohibited the researcher from making public health claims about microwave ovens and from using death-related imagery. The European Court of Human Rights held that, when properly balancing the rights of those market actors against the researcher’s freedom of expression, priority should be given to expression, particularly as no commercial harm had been proven.

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Facts

In 1992, issue no. 19 of the quarterly Journal Franz Weber was devoted to the potential health risks of consuming food prepared in microwave ovens. Hans Ulrich Hertel, a Swiss retiree with a degree in technical sciences who conducted private research in his own laboratory, and Professor Blanc, of the Federal Technical High School in Lausanne, carried out a study and subsequently authored a research paper, an extract of which was published in that journal. The issue of the journal also included a depiction of the Grim Reaper holding a microwave oven, featured on the cover and several other pages, an editorial by Franz Weber highlighting the supposed health dangers of microwaves (stating, inter alia: “Today science proves us right (…). Microwave ovens should be banned”), the inclusion of Hertel in the issue’s editorial staff list; and another article, presented as scientific, on the harmful effects of microwaves, authored by René d’Ombresson.

On January 27, 1992, Professor Blanc publicly distanced himself from the publication, stating that it had been released without his consent and that the presentation and interpretation of the preliminary experiment were unwarranted.

On March 18, 1992, the Swiss Association of Manufacturers and Suppliers of Household Electrical Appliances (“MHEA”) brought proceedings against Weber before the President of the Vevey District Court, under the Federal Unfair Competition Act of 19 December 1986. MHEA requested an interim order prohibiting, in general terms, statements and imagery alleging serious health risks associated with microwave ovens and calling for a ban on these devices. The application was dismissed on April 7, 1992. While expressing doubts as to its applicability, the Court held that (even assuming it was admissible) an interim order was not justified due to the lack of evidence of any substantial impact of the publication on the sale of microwave ovens and noted that the conclusions regarding the harmfulness of microwave ovens, expressed in such categorical terms, were not scientifically justified. The Court stated that “the interim orders sought would appear disproportionate at all events [and] would in fact lead to a kind of judicial censorship of scientific research and the conclusions that may be drawn from it, and this is scarcely compatible with the living traditions in this country, in which it is generally considered that it is for one’s peers and not for the courts to assess the worth and significance of a scientist’s work”. [para. 17] The Court did, however, issue a formal note to Weber to not use death-related imagery in public in relation to microwave ovens.

On April 14, 1992, Weber made a statement declaring that responsibility for the form and content of the issue lay with the editor, not with Hertel or Blanc, and that Hertel had been listed as an editor rather than a contributor by mistake.

Hertel did not respond to the request from the MHEA to issue a statement promising to refrain from making unfair claims about microwave ovens. Subsequently, on August 7, 1992, the MHEA, relying on the Federal Unfair Competition Act, filed an application with the Commercial Court of the Canton of Berne seeking to prohibit him, under threat of penalties, “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”. [para. 20]

On March 19, 1993, a judgment was issued in which the Commercial Court allowed the application. The Court emphasized, for example, that, under the Federal Unfair Competition Act, there is no need to establish intent to influence the market as what matters is whether there is objective capability of affecting competition. It noted that Hertel’s position was not scientifically justified and was also unnecessarily exaggerated and that, as a subscriber to the Journal Franz Weber, Hertel was familiar with its character and accepted that his article would be interpreted in a simplified and overstated manner. In the context of scientific freedom, the Court stated that it “does not therefore justify publication – especially in non-specialist periodicals (publication in specialist reviews would have to be considered differently) – of provisional results of research that are misleading or devoid of sound scientific basis and do not enable conclusions to be reached with certainty”. [para. 22] The Court also took into account the fact that Hertel did not distance himself from the publication after its release (unlike Professor Blanc). Importantly, in both this proceeding and the one concerning Weber before the President of the Vevey District Court, an expert had challenged the credibility of the study on the harmfulness of microwave ovens.

Hertel appealed to the Federal Court (First Civil Division). On February 25, 1994, that Court upheld the lower court’s decision. Hertel had argued that the statements in question did not relate to the context of competition, but rather to the protection of public health. The Federal Court adopted an objective approach to the capacity to affect competition, rather than focusing on the intention to do so. The Court noted that Hertel did in fact intend to influence the market, albeit with idealistic rather than profit-driven motives. In the context of the relationship between academic freedom and competition law, the Court stated that “[a]nyone claiming scientific freedom is therefore wholly free to expound his knowledge in the academic sphere but, where competition is concerned, he may not claim to have the truth on his side where the opinion he is putting forward is disputed”. [para. 23]

On September 13, 1994, Hertel filed an application with the European Court of Human Rights, arguing that his rights to freedom of expression under Article 10 of the European Convention on Human Rights had been infringed.

Article 10(1) states that “[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

Article 10(2) permits limitations to the right, and the courts have adopted a tripartite test to determine whether a limitation is justified: (1) is the limitation prescribed by law; (2) does the limitation pursue a legitimate aim; and (3) is it necessary in a democratic society?

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Decision Overview

The European Court of Human Rights delivered a majority decision of six to three. The central issue for the Court’s determination was whether Hertel’s right to freedom of expression had been infringed by the prohibition against claiming that microwaved food is highly harmful and from using death-related imagery in that context.

Hertel argued that none of the tripartite test requirements had been met: he submitted that he could not have foreseen that his act would result in a sanction under unfair competition law and so the limitation to his rights was not prescribed by law; that the aim of “fair” competition, the aim pursued by the national authorities, is also not listed as a legitimate aim in Article 10(2);and that the ban was disproportionate.

The Swiss Government argued that the interference in Hertel’s rights was based on the Federal Unfair Competition Act, under which Hertel did not need to be one of the market competitors to commit the prohibited act, and so was “prescribed by law”. It submitted that the prohibition served a legitimate aim of the protection of the “rights of others” and the “prevention of [economic] disorder”. The Government argued that the interference was “necessary in a democratic society,” as there was a pressing social need, given the interest of the MHEA and consumers, as well as the controversial nature of the question and the lack of sufficient scientific rigor from Hertel.

The Court noted that, in the context of the “prescribed by law” requirement, the law must be formulated with sufficient precision, which includes the ability to foresee the consequences of a given action. It found that this requirement of the test was met as the applicable regulation is not limited to economic agents, and so applied to Hertel.

In finding that the interference in Hertel’s rights pursued a legitimate aim, the Court accepted that – contrary to Hertel’s position – the interference, although relating to unfair competition, could be brought under the heading of “protection of the … rights of others” (namely, microwave oven market actors), which is explicitly stated in Article 10(2).

The Court then examined whether the prohibition on Hertel speaking about the dangers of microwave ovens was “necessary in a democratic society”. The Court reiterated the importance of freedom of expression, including for statements that offend, shock, or disturb, and stressed that exceptions must be narrowly interpreted. It noted that “necessary” in Article 10(2) implies a “pressing social need”, which states may assess within a certain margin of appreciation, subject to European supervision: the European Court of Human Rights does not replace national authorities but oversees whether they respected Article 10 principles and properly assessed the facts. Referring to Markt Intern v. Germany, the Court noted a broader margin of appreciation in commercial matters, but emphasized that this margin is narrower when speech contributes to public debate on matters of general interest – such as, in this instance, the impact of microwaves on human health.

The Court held that, in assessing the proportionality of the interference in light of its aim, it was necessary to balance the rights of MHEA members with Hertel’s freedom of expression. The Court established a different account of facts to the Swiss courts, noting that although Hertel submitted his paper to Journal Franz Weber, he did not edit the issue or choose the illustrations. The Court also noted that Hertel had no involvement in creating the cover title, the editorial column, or the section attributed to René d’Ombresson; his responsibility was limited to the excerpt from his research paper and, additionally, he had no role in the titles or subtitles accompanying it. The Court noted the moderate tone of Hertel’s article (particularly when compared to issue no. 8 of Journal Franz Weber in 1989, in which Hertel had stated that that microwave ovens are “worse than the Dachau gas chambers”). [para. 44] It found that Hertel’s language was less radical than claimed by the Government, as evidenced by his repeated use of the conditional and careful non-affirmative expressions, and noted the restrained summary of the research findings and that Hertel did not call for the destruction or boycott of microwave ovens.

In the context of the impact of Hertel’s statements on the sale of microwave ovens, the Court found that the journal had a circulation of about 120,000 and that its influence was however limited due to the publication’s specific readership and its distribution being almost exclusively by subscription. It noted that no measurable effect of the publication causing harm to the members of the MHEA was demonstrated in the course of the proceedings and that attention was drawn only to the potential for such an impact.

Accordingly, the Court found that there was a discrepancy between the prohibition and the conduct it was intended to rectify and that the third requirement of the tripartite test had not been met. The Court stated that “[i]t 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”. [para. 50] In light of the above, the Court found that the third requirement of the tripartite test had not been met and held, by six votes to three, that there had been a violation of the Convention.

In his dissenting opinion Judge Bernhardt noted that the majority emphasized the importance of the margin of appreciation in determining what restrictions on the freedom of expression may be necessary but did not, in fact, apply this principle to its reasoning and reviewed the decision taken by national courts.

In his dissenting opinion, Judge Matscher did not agree that the interference failed to meet the third requirement of the tripartite test, namely that it was “necessary in a democratic society” and would have found that the penalty imposed by the Swiss courts was proportionate because the national authorities were justified in assuming that Hertel should have foreseen how his article would be used in the magazine. Referring to Markt Intern v. Germany, Judge Matscher stated that “I consider that in unfair competition cases States should be afforded a wider margin of appreciation than in other spheres of freedom of expression. Otherwise, the system for preventing unfair competition, one that is beneficial to the business world, will be destroyed”.

Judge Toumanov concurred with the dissenting opinion of Judge Bernhardt and added that he was opposed to reimbursing Hertel for the costs and expenses he incurred before the national courts.

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