Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2014-6/1European Court of Human Rights: Brosa v. GermanyThe European Court of Human Rights has delivered an interesting judgment on the right to freedom of politicalexpression, during pre-election time. The applicant, Mr Ulrich Brosa alleged that a court injunction in Germany,prohibiting him from distributing a leaflet that he had drawn up on the occasion of mayoral elections, had violatedhis right to freedom of expression. The injunction at issue prohibited Brosa from distributing a leaflet in which hecalled not to vote for a candidate, F.G. for the office of local mayor, who allegedly provided cover for a neo-Naziorganisation, Berger-88. The injunction also prevented Brosa from making other assertions of fact or allegationsthat might depict F.G. as a supporter of neo-Nazi organisations. Any contravention was punishable by a fine of upto EUR 250,000 or by imprisonment of up to six months. The German courts found that to claim that someone wassupporting a neo-Nazi organisation amounted to an infringement of that individual’s honour and social reputationand to his personality rights, while Brosa had failed to provide sufficient evidence to support his allegation againstF.G. In Strasbourg, Brosa complained that the injunction had breached his right to freedom of expression, asprovided for in Article 10 of the Convention.Examining the particular circumstances of the case, the Court refers to the following elements to be taken intoaccount: (1) the position of the applicant, (2) the position of the plaintiff in the domestic proceedings, (3) thesubject-matter of the publication and finally (4) the classification of the contested statement by the domesticcourts.As to the position of Brosa, the Court notes that he is a private individual, participating however in a publicdiscussion on the political orientation of an association. F.G. was an elected town councillor who was runningfor the office of mayor at the time in question. This status of F.G. as a politician made the limits of acceptablecriticism wider than as regards a private individual. The subject-matter of the publication concerned a leafletasking citizens not to vote for F.G. as mayor, primarily on the basis of his attitude vis-à-vis an association havingan extremist right-wing orientation. Brosa’s leaflet, disseminated in the run-up to the mayoral elections wastherefore of a political nature on a question of public interest at the material time and location, leaving little scopefor restrictions on political speech or on debate of questions of public interest. As regards the qualification ofthe impugned statement by the domestic courts, the Court considers it to consist of two elements: firstly, theallegation that the association Berger-88 was a neo-Nazi organisation that, moreover, was particularly dangerous;and, secondly, the allegation that F.G. had “covered” for the organisation. The Court admits that, in substance,the reference to the neo-Nazi background and the dangerous character of Berger-88 was not devoid of factualbasis, while the Court also reminds us of the fact that the association was monitored by the German IntelligenceServices on suspicion of extremist tendencies. The European Court holds the opinion that that the German courtsin this case required a disproportionately high degree of factual proof to be established. It also considers thatthe statement that F.G. has covered the neo-Nazi organisation at issue was part of an ongoing debate. The Courtfinds that this statement had a sufficient factual basis, referring to F.G.’s public statements, emphasizing that theassociation had no extreme right-wing tendencies and calling Brosa’s statements “false allegations”. Accordingto the Court, Brosa’s leaflet did not exceed the acceptable limits of criticism. Therefore the Court comes to theconclusion that the German courts failed to strike a fair balance between the relevant interests and to establish a"pressing social need" for putting the protection of the personality rights of F.G. above Brosa’s right to freedom ofexpression, even in the context of a civil injunction rather than criminal charges or monetary compensation claims.Under these circumstances, the Court considers that the domestic courts overstepped the margin of appreciationafforded to them and that the interference was disproportionate to the aim pursued and not “necessary in ademocratic society”. There has been, accordingly, a violation of Article 10 of the Convention. The Court held thatGermany was to pay Mr Brosa EUR 3,000 in respect of non-pecuniary damage and 2,683 euros in respect of costsand expenses.• Judgment by the European Court of Human Rights (Fifth Section), case of Brosa v. Germany, Appl. No. 5709/09 of 17 April 2014http://merlin.obs.coe.int/redirect.php?id=17052ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaIRIS 1The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Brosa v. Germany

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European Court of Human Rights: Brosa v. Germany

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Ghent University Academic Bibliography