Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Mixed Outcome
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The European Court of Human Rights (ECtHR) ruled that Germany did not violate Article 10 of the European Convention on Human Rights (ECHR) when it prevented the publication of posters that compared images of caged animals with those of concentration camp prisoners. The case originated when Jewish Holocaust survivors requested an injunction preventing the dissemination of posters highlighting the similarities between the mistreatment of animals and the suffering of victims in Nazi camps. The Berlin Regional Court granted the injunction, which was upheld by the Court of Appeals and the Federal Constitutional Court. The ECtHR found that the injunction was a justifiable restriction as it sought to protect Jewish Holocaust survivors and that the German courts had properly struck a balance between freedom of expression and the obligation to respect the reputation and rights of others.
In 2004, the German branch of animal rights organization PETA (People for the Ethical Treatment of Animals) designed a poster campaign depicting images of animals in mass stocks next to prisoners in Nazi concentration camps. The campaign aimed at highlighting similarities between the mistreatment of animals and the suffering of the victims of Nazi camps.
Jewish Holocaust survivors requested an injunction be issued in order to prevent the publication and dissemination of these posters. The survivors claimed that the images violated the memory of Holocaust victims and offended their human dignity. The Berlin Regional Court granted the injunction, which was upheld by both the Court of Appeal and the Federal Constitutional Court. The courts found that, while PETA had not intended to diminish the suffering of Holocaust victims, its posters could be interpreted as equating human victims of concentration camps to animals. The courts found this depiction to be unacceptable under German law, which is constructed around the protection of human dignity.
Following the Constitutional Court’s rejection of PETA’s appeal, PETA brought its case before the ECtHR. PETA claimed that the injunction violated its right to freedom of expression, which is protected by Article 10 of the ECHR.
The ECtHR recognized that the injunction against the publication of the PETA’s posters, which were created to raise awareness on a topic of public interest, the well being of animals, interfered with PETA’s enjoyment of its right to freedom of expression. An interference with the right to freedom of expression, as guaranteed by Article 10 of the ECHR, can only be justified by legitimate aims.
The ECtHR found that the injunction lawfully and legitimately sought to protect the reputation and rights of the Jewish survivors. While evaluating the necessity of the injunction in a democratic society, the ECtHR took into account the specific responsibilities of the German state towards the victims of the Holocaust. Germany, thus, had a wide margin of appreciation in assessing the matter, and the ECtHR found that the reasons given by Germany to support the injunction were sufficient. The ECtHR agreed with Germany’s argument that its national courts had correctly struck the balance between the protection of freedom of expression and the obligation to respect the reputation and rights of others.
Judges Zupancic and Spielmann signed a separate concurring opinion, agreeing with the outcome of the case but raising questions regarding the reasoning of the ECtHR. According to their concurrence, the majority’s argument that such posters would be unacceptable in Germany because of its specific history and responsibilities in the Holocaust posed the risk of relativizing the “unacceptable use of the freedom of expression.” [para. 3] Following a relativistic rather than a principled reasoning, the ECtHR could find itself in a difficult position when judging similar cases regarding countries with different historical pasts. Following the Grand Chamber’s decision not to reconsider the case, the judgment became final on March 18, 2013.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision reflects the ECtHR’s jurisprudence in two fundamental ways. First, it upholds the idea that states have a wide margin of appreciation in regulating matters of social significance. This idea requires the ECtHR to consider the specific historical and social context of each country before it in making its rulings. Second, more specifically with respect to Germany and the memory of the Holocaust, the ECtHR here was consistent with its previous ruling in the case of Hoffer v. Germany, a case where Germany was acquitted of violating Article 10 of the ECHR for sanctioning the distribution of leaflets that equated abortion to the Holocaust.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The parties involved in the case are bound by decisions of the ECtHR.
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